Gilbert Submits

A New Year's Resolution

2010-01-04T15:53:00.000-08:00

When I was a kid, rarely did we see “homeless” people wandering the streets, and never did we see someone putting cardboard boxes together to make a shelter to sleep in the park. The occasional vagrant begging for a handout was called “a bum” or “a drunk.” I recall when I was a college student, a man, unshaven and wearing dirty clothes, approached a group of us walking down the street and asked for money. One of my friends told him to get a job. The man swore at us as we walked away. That scene, fifty years ago, still haunts me. I wasn’t sure how to respond. Jobs were much more available then, but this particular needy person may not have been capable of getting a job, and, perhaps, had we given him money, he might have spent it on booze. But these rationalizations give me small comfort.

Now, fifty years later, on occasion I either give a few dollars to a homeless person or order him or her a meal. Notice, I said “on occasion.” I am not sure why sometimes I do and sometimes I don’t. About twenty-five years ago, when I was newly appointed to the Court of Appeal, a group of my colleagues and I were walking to lunch on Wilshire Blvd. A pathetic looking homeless person standing by the curb asked us in almost a whisper if we could spare some change. I doubt my colleagues heard him, but I did. I walked over and gave him some change.

One of the justices gently chided me for giving him money that he was sure would be spent on alcohol. He suggested good naturedly that I was a typical liberal. I responded that even alcoholics have to eat. A psychiatrist friend of mine scolded me for giving money to a homeless person. “He is an alcoholic. He will just spend the money on booze.”

Maybe they are right. Perhaps it is better to donate time and money to a homeless shelter than to offer random individuals sporadic palliatives. Yet, it is hard to ignore the lady with the dog at the freeway entrance at 11:00 p.m. or the elderly couple huddled in the front alcove of a closed store on a cold evening.

This dilemma spawns so many questions. Was I a liberal when I gave money, but not a liberal when I didn’t? Is there such a thing as a sometimes liberal? The term “liberal” was effectively used in George W. Bush’s campaign for President as a contemptible trait found in people who were not worthy to govern.

But what is a liberal? Someone who supports change for the good of everyone in society? Someone who supports justice for everyone? Do not conservatives aspire to the same goals? I have heard conservatives complain that liberals theorize about concepts, but can be cranks who tyrannize their spouses, offspring and friends. And I have heard liberals complain that some of their conservative friends are kind and generous on a personal level, but have no compassion or concern about specific groups of people, like, for instance, the homeless or the uninsured.

Whatever those terms connote, it looks like neither conservatives nor liberals have exclusive rights to the moral high ground. David Brooks, who some consider a conservative columnist, wrote a month or two ago in the New York Times about notions of morality. Brooks notes that Princeton Professor Kwame Anthony Appiah, in his book, Experiments in Ethics, posits that decades of experiments have led psychologists to question traditional philosophical notions of morality. We act in moral ways sometimes, but not always. We can be generous and courageous in some situations, and downright despicable in others. And this goes for liberals and conservatives.

Appiah acknowledges that there may be a seeming conflict between the philosophical conception of a consistent moral character and the results of scientific experimentation that show otherwise. But Appiah contends that moral philosophy and scientific empiricism are compatible and can have a “conversation.” The recent debate over health care and other public issues leads me to believe a “conversation” is not taking place between liberals and conservatives.

And this brings me to two unabashed liberals, both friends of mine who passed away within one day of each other. I bet that everyone who knew these two remarkable persons would agree that they both embodied a consistent moral persona that I am certain scientific experimentation would have verified.

I speak of activist Alice McGrath and civil rights lawyer Bob Berke. I was fortunate to have spent time with both of them, just days before their passing.

Alice became famous for her fortitude and commitment to justice as Director of the Sleepy Lagoon Defense Committee. The play, Zoot Suit, by Luis Valdez, tells the dramatic story of this famous trial in which twelve Mexican-American men were tried for murder in 1940. The convictions were reversed in People v. Zammora, 66 Cal.App.2d 166 (1944). The trial was infected with racism and hostility towards the defendants. The appellate court found the evidence insufficient to show defendants conspired to commit murder (id. at pp. 201-202) and chastised the trial judge for disparaging remarks he made about defense counsel in the jury's presence (id. at p. 215).

Alice, diminutive, stunningly beautiful, possessing a will of iron, but always with a twinkle in her eye, fought for social justice all her life. In her 80's, she developed a legal aid program for poor people in Ventura and led numerous study groups to Nicaragua and Cuba. In 1991, Alice accompanied the justices of my division of the Court of Appeal and others from various disciplines on such a trip to Cuba.

We visited the courts and law schools. Alice promoted and encouraged frank discussions with judges and government officials about our differences. Alice and I had many lunches together during which we engaged in animated discussions about literature, politics and religion. And then I lost this great friend. She died November 27th at the age of 92.

Bob Berke was one of the great civil rights lawyers of our day. An indefatigable worker, he refused to give up. I first met him when he was a public defender in my trial court in the 1970's. Like Alice, his commitment to justice was built into his DNA. Bob is credited with helping establish case law allowing criminally charged defendants discovery procedures into police misconduct. He was victorious in public interest lawsuits and secured reversals for defendants whose convictions were based on suspect jailhouse informant testimony. He was handsome, vital, warm and engaging. Again, like Alice, he was someone you could not help but like. He and I had lively discussions about the law, the courts and politics. And a few weeks after our last discussion, he died quite suddenly on November 28th from a form of encephalitis at the untimely age of 61.

The deaths of these two vital individuals take me back to David Brooks' insightful observations. At the end of his column, he remarks that Spike Jonze's film, Where the Wild Things Are, illustrates how the difference between the philosophical and psychological may find resolution. Max, the protagonist, quells the wild impulses within him, but not through the force of reason and self-analysis. These tools are often no match for impulses and instincts that come from evolution, culture and upbringing. Instead, weakness, fear and selfishness are subdued when Max is focused on building a fort or being involved with someone else. Brooks theorizes that "it is possible to achieve momentary harmony through creative work."

And that explains how Alice McGrath and Bob Berke lived their lives. Their moral compass never lost its course because they directed their dissatisfaction with injustice through action, not ranting, not verbal attacks, but doing. They took time to consider other points of view and responded to their adversaries with civility--a good model for all of us, for liberals and conservatives alike. I would like to see everyone adopt this approach as a New Year's resolution. By "everyone," I include politicians and judges everywhere, even in California. And when you ponder what to do about a homeless person in distress, you will make the right decision.

ROBERTO

2009-12-07T16:16:00.000-08:00

When I left court the day before Thanksgiving, I said goodbye to my Cuban friend, Roberto, our security guard. We hugged and wished each other a happy Thanksgiving.

The day after Thanksgiving, when I arrived with friends at the restaurant at which I had made dinner reservations, the maitre d asked me in a friendly tone, “Who are you?” I am sure my immediate response was off-putting. I said, “I’m nobody! Who are you? Are you nobody, too?” I quickly realized this was a good way to lose the dinner reservation, so I quickly apologized and blamed my response on Emily Dickinson. He did not seem upset and asked if she would be added to our party. I told him that she was a 19th Century American poet who wrote a poem entitled “I’m Nobody.” I then recited it for him:

I'm nobody! Who are you?
Are you nobody, too?
Then there's a pair of us — don't tell!
They'd banish us, you know.

How dreary to be somebody!
How public, like a frog
To tell your name the livelong day
To an admiring bog!

He liked the poem and asked again if Emily would be joining us. I told him I did not think she would be able to join us, but promised to send him a copy of the poem. He sat us at a good table.

You may be wondering what this poem has to do with Thanksgiving and Roberto. The simple answer is: everything.

This poem speaks to me, not because I think I’m nobody. I mean, I do have some body. Wait, that did not come out right. I mean, I am some body, I mean somebody. Still does not sound right‑‑either way.

My point is simply that at times I realize I am nobody special. Sorry, I know this is getting tiresome, but it still does not sound right. It reminds me of the term we learned in law school, “negative pregnant.” It implies that most of the time I feel like I am somebody special, and only now and then, when I acknowledge I am nobody, do I feel kinship with Emily. But that is not the case at all.

I have concluded that Ms. Dickinson’s seemingly self-deprecating pronouncement about who she is, “nobody,” does not stem from one or more public incidents in her life. For example, had she, like me and my colleagues, experienced a “reversal” by the United States Supreme Court or even a few by the California Supreme Court, she would not conclude she was “nobody.” She might wonder how the High Court justices could be so wrong, or take comfort that the United States Supreme Court’s decision in Nollan v. California Coastal Commission (1987) 483 U.S. 825 was five-to-four.

And had the Supreme Court “affirmed,” I believe Ms. Dickinson might conclude, as have I, that the affirming justices would feel as much admiration for me or her as would a bog for a frog. I think Ms. Dickinson’s “nobody” paradoxically is the unique special “somebody” who she, who we, who you, truly are, and not the public “you” who might have a title or apparent indicia of success. Ironically, I so admire Ms. Dickinson, that, for me, she is both somebody and nobody.

And all this relates to Thanksgiving and Roberto. He and I are about the same age. I had been to Cuba in the early 1990’s, and I wanted to know how he had survived the revolution. I prevailed upon the reticent Roberto to tell me about his life. Over several months, he related to me a compelling story that taught me what Emily Dickinson was talking about.

In 1959, Roberto was a young man in his early 20’s, living with his parents in Cuba. He was not political, but had the misfortune at that time to be a cadet in the Cuban Air Force Academy when Castro’s revolution took place. A few days before the Bay of Pigs invasion, he and thousands of others were arrested and taken to a castle near the center of the city. He survived each day on water and one meal of beans and rice. The weeks dragged on, but, every few days, some detainees' names were called over a loud speaker. For whatever reason, these detainees were immediately and unceremoniously released and told to go home. It was apparent that most detainees had no idea why they had been arrested or why they were being released. Roberto speculated that the authorities did not know what they were doing, but thought that, because he had been in the Air Force Academy, he had little chance of being released.

After two months in detention, Roberto got a lucky break. The authorities called the name of a friend of his that he knew had already been released weeks earlier. He answered, “Here,” and they let him go.

Roberto hid at his parents’ house for a few days, and then left with a friend who arranged passage for them to a small island off Cuba. He spent several months there and formulated a plan with several families to put together a small flotilla of boats to head for the United States.

The departure date had to be moved forward when they learned that Castro's brother was coming to the island the next day. They were not prepared to leave, but had no choice. Within a few hours, they tied ten boats to one another and headed out to sea in the middle of the night. After a day or two, a sudden storm tore the boats from one another. They were adrift with enough provisions to last only a few days.

For nine days they floated aimlessly at sea with little food or water. During that time a young woman on board gave birth to a baby boy who miraculously survived. Just when they were losing all hope, a ship from the Cayman Islands appeared on the horizon and rescued them. The U.S. Coast Guard picked them up and restored them to good health. Our government granted him asylum. It was heartening to hear him tell how kind and supportive the Coast Guard officials were to the "boat people."

Roberto lived for several months in what came to be called "Little Cuba" in Miami. He eventually made his way to California where he and his friends lived in a rooming house on Vine Street across from the American Federation of Musicians, the musician’s union. I then lived in Hollywood with my parents, just a few miles from the musician’s union. I remember the opening of its new building in 1950 when my parents took me to hear a concert at the union hall. Ferde Grofé conducted the orchestra in his composition, “Grand Canyon Suite.”

I think that was the time I decided it would be “cool” to be a musician. In 1960, when Roberto found a place to stay across from the union hall, I was agonizing over whether I should go to law school or be a jazz pianist and starve to death. I often drove past the union hall and dreamed of hanging out with the other “cats” and playing in jam sessions. In fact, at that very time, Roberto, on the front steps of his rooming house, was listening to the music wafting across Vine Street.

Roberto worked hard, learned English, became a skilled machinist, and was able to bring his parents and sister to the United States. To keep busy, Roberto now works at the court.

While Roberto struggled to learn English, I struggled to answer the impossible questions my law professors put to me. While Roberto was looking for work, my parents plunked down the astronomical sum of around $200 for admission to law school at the University of California. While I wrestled with a workable notion of freedom, having witnessed the stultifying conformity and political witch hunts in this country during the 1950’s, and then experienced the tumultuous excesses of the 1960’s, Roberto had to flee the stifling repression of Castro’s dictatorship. Roberto recently survived another challenge, his battle with cancer.

This brings home to me that throughout our lives, in heat and frost and seemingly at random, we come upon paths taken and not taken. Luck and sometimes a glass of milk and a cookie play a significant role in the choices we make, whether to take this path or that one. But, as Louie Pasteur said to me one night over coffee, “Luck favors the prepared mind.”

A skilled and successful lawyer argued a case in my court a few months ago. In the middle of the argument, he turned into a Gatling machine gun and began asking me questions in rapid succession. I automatically began thinking of answers until it dawned on me something was amiss. “Wait a second,” I said. Something is wrong here…. Give me a minute…. I’ve got it. I ask the questions.” Everyone laughed. For the moment, I was the somebody who asks the questions. But I knew I was nobody. And I suspect that the sharp-witted lawyer knew he too was nobody.

At this past Thanksgiving, and at unexpected times throughout the year, I give thanks that I am nobody. And I give thanks that I am friends with Roberto, who is so special because he is somebody and nobody.

CATS AND CORPORATIONS

2009-11-16T12:00:00.000-08:00

"A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law…. Its immortality no more confers on it political power, or a political character, than immortality would confer such power or character on a natural person.” So wrote Chief Justice John Marshall in Trustees of Dartmouth College v. Woodward (1819) 17 U.S. 518, 636.
John Marshall’s sentiments may have been on Justice Sonia Sotomayor’s mind in her debut appearance at oral argument at the U.S. Supreme Court in the case, Citizens United v. Federal Election Commission. The issue before the court was whether the campaign finance law limiting corporate donations violated a corporation’s First Amendment rights. Judges "created corporations as persons, gave birth to corporations as persons," she said. "There could be an argument made that that was the court's error to start with ... [imbuing] a creature of state law with human characteristics."
And Justice Sotomayor may have found a like mind in Justice Ruth Bader Ginsburg who said, "A corporation, after all, is not endowed by its creator with inalienable rights."
Thought-provoking comments like these do not necessarily indicate how a justice will vote on an issue, but the justices raise a good point. The attributes corporations have as persons are created by statute. Corporations can own property and sue and be sued, but they can’t sue for emotional distress or loss of consortium. Why? Because they really are not persons. They are simply substitutes for persons, sometimes.
And this got me thinking about my, I mean our, two cats. Some people can’t stand seeing other people, particularly those without children, fawn over animals. They contemptuously refer to these animals as “children substitutes.”
My wife, Barbara, rejects the notion of cats as child substitutes. “They are simply cats.” My response: “So why do we fret about them and attend to all their needs?”
I think it boils down to this. Just as a corporation may be treated like a person for some purposes, so may a cat be treated like a child for some purposes. But we all know that a corporation is not really a person, and a cat it is not really a child. I mean you don’t burp a kitten. You may play ball with it, but you don’t take it to a ball game.
And, if you are a little crazy, you may have a birthday party for it when it is one year old, which translates into around seven human years. Then you can go crazy deciding who to invite‑‑ Other neighborhood cats? A few small dogs? An eccentric neighbor or two? And what about presents?
Even the nitwits who throw parties for their pets figure out the whole thing is a farce when they wind up buying all the presents. (Parenthetic tip: Cats hate practical presents that benefit their owners. Collars and kitty litter are out. Catnip or a toy to moisten in their spit is preferable.)
Recently a journalist with apparently nothing to write about sought to interview professionals about the difficulty of raising children and attending to their professions. Somehow she got my name. The journalist thought a story about a presiding justice and his children would be of great interest to the reading public. She called me at a time when I was feeling particularly close to my cats, I mean, our cats. Barbara has often reminded me that they are “our” cats, not mine alone. That is true. In fact, I think she is their favorite.
I agreed to the interview and suggested to Barbara that, because the cats are “ours,” she should participate. She looked at me in what I would charitably call an expression of disbelief, and declined. She rejected out of hand my cat-corporation comparison. I decided to be interviewed alone, but assured Barbara that I would refer to the cats as “our” children. She said that would not be necessary and extracted a promise that under no circumstances would I mention her name. Ladies and Gentlemen of my readership, you are instructed to disregard the name “Barbara,” and not to consider it in your discussions, deliberations, evaluations or thoughts about this column.
The interview took place at a posh restaurant on the exclusive “Westside” of Los Angles. The interview began over an endive salad with blue cheese crumbles, walnuts, grapefruit slices and a subtle vinaigrette dressing. It was concluded before dessert. What follows is my best recollection of the interview:
Journalist- So how many children do you have?
Me- Two.
Journalist- How old are they?
Me- (a pause‑‑not to be confused with paws‑‑sorry, couldn't help that) Around 20.
Journalist- Around 20?
Me- You get busy; you lose track. Let’s just say 20.
Journalist- (a quizzical look on her face) O.K…. Around 20. (a pause) What is the date of their birth?
Me- I can’t really say. We got them a few months after they were born.
Journalist- (brightening) So you adopted them?
Me- Yes, you might say we did.
Journalist- So they are twins?
Me- No, they are brothers.
Journalist- (about to pursue the matter, but thinking better of it, moves to a new topic) What are their names?
Me- Tatum and Powell.
Journalist- They sound like last names.
Me- They are. I named them after two of my favorite jazz pianists, Art Tatum and Bud Powell.
Journalist- Are your boys musical?
Me- I wouldn’t say so. But one likes to sit on the piano when I play.
Journalist- Describe them to me.
Me- Well, they are frisky, curious, and they are black.
Journalist- Black? (pause, not sure how to proceed) Were they adopted from Africa?
Me- No, their parents live in the U.S.
Journalist- What do you know about their mother?
Me- Not much. I was told that she gave birth while living in an empty lot next to a freeway off-ramp.
Journalist- (heeding her inner voice to develop another line of questioning) What, with your professional duties, have you and your wife been able to devote sufficient attention to your sons?
Me- We have done our best. They seem happy and carefree.
Journalist- The optimism of youth. Your sons are in their 20’s. Do they have romantic relationships, girlfriends, boyfriends?
Me- Not a chance.
Journalist- Not a chance?
Me- They have limited contacts with other….
Journalist- (interrupting) You are a strict father.
Me- I am just concerned about their safety.
Journalist- I appreciate that, but you can only protect them so much.
Me- I suppose that’s true. I shouldn’t be that concerned. After all, they are fixed.
Journalist- Fixed in their ways?
Me- Yes, you could say so, but at least they have no interest in the opposite sex.
Journalist- (getting red in the face and opting yet again for another line of questions) What are the things you like and dislike about your sons?
Me- What I like is that they respect the house and the furniture. And they sharpen their claws and teeth elsewhere.
Journalist- You mean they have their priorities in place.
Me- Yes. But their proclivity to pass back and forth in front of me is disquieting.
Journalist- Why would that be of concern?
Me- It brings bad luck.
Journalist- How so?
Me- Well, they are black.
Journalist- (becoming apoplectic) To… to imagine… that you… you, of all people, are a racist.
Me- A racist? What are you talking about? I just have this silly superstition thing that I am trying to deal with. I‘ll get over it.
Journalist- I must tell you that I’m dismayed to learn that you are a horrible parent without a clue how to raise a child.
Me- What do you mean? Our sons are well fed. They receive love and affection even when they don’t return it. Why, we even let them sleep with us. And on cold nights they crawl under the covers.
******************************************************
The journalist slapped her napkin down upon the table. I thought this was a good time to change the subject. I asked her what she thought about First Amendment rights for corporations. Without saying a word, she forcefully pushed her chair back, got up from the table and strode out of the restaurant. I had my dessert and coffee alone, and picked up the check.

Tiny Pools of Perspiration

2009-11-12T13:17:00.000-08:00

The headline smacked me in the face. Despite Money Woes, Judges Train in Luxury. (Daily Journal, August 11, 2009.) A thousand tiny pools of perspiration dampened my forehead. The pools overflowed and the rivulets cascaded down the craggy crevices of my face. (The two preceding sentences appeared in a draft of an opinion I wrote on the issue of retraxit. For some reason my colleagues refused to concur unless I deleted the sentences. So I thought I would use them here.)
I had already made my plane reservation. The next day I was scheduled to leave for the Dolce Hayes Mansion Resort in San Jose to teach a class with Justice Perren at the Judges College. How could I fly to San Jose and teach at a posh resort while the state teeters on the edge of bankruptcy? But it was too late to cancel my ticket without a penalty. When I arrived the next day at the opulent hotel at about 11:30 a.m., I didn’t see any judges. They were all in class diligently pursuing their daily studies from 8:00 in the morning to 5:00 in the afternoon to become more proficient in their profession.
My investigation confirmed what the article had acknowledged. The rate was a mere $110 per night which included the use several meeting rooms. Try and get those amenities at Motel 6 for that rate. But during the short one-hour lunch period, the judges told me how the story may have been passed to newspapers. The strands of my thinning hair stood at attention. A few days earlier, a "mole," posing as a judge, had infiltrated the college and “nosed” around asking questions. He pretended to be just another student judge hanging out with the new judges during breaks between classes. One student judge became suspicious when the faux judge said to him, "Someone told a friend of mine that the hearsay rule is dead. Do you think that's true?"
No one was sure whether the uninvited guest was a reporter. Sorry, I just used an out-of-date term. Today they are called “staff writers.” Does that mean they “write” the news rather than report it, or are the two synonymous? Ben Hecht’s play, The Front Page, which opened on Broadway in 1928, was about newspapers and "reporters" in days gone by. The play tells a riveting story about a capital case and the wise-cracking reporters covering the story who worked out of City News Bureau of Chicago. Reporters were cynical and tough-minded. Every detail of a story had to be thoroughly checked. If your mother said she loved you, the rule was, check it out. No doubt the term derived from their mission to accurately report the news. But I digress.
Suppose the "mole," let's call him an investigative journalist, was sued for something scary like defamation or invasion of privacy and wound up in court. I bet he would expect the judge hearing his case to be competent, fair, unbiased, conscientious, knowledgeable, industrious, thorough, scholarly and respectful ‑‑ just some of the traits the JNE Commission considers important in its evaluation of nominees for judicial office.
No doubt these thoughts were not on his mind. He was looking for an exposé. He did not find one. Despite the headline, the Daily Journal article accurately "reported" that the California Rules of Court require new judicial officers to attend the college and the bids were solicited more than a year ago. (See Cal. Rules of Court, rule 10.462.) True, the resort was nice, but the rooms were inexpensive. And the judges worked hard for two weeks learning about evidence, civil and criminal trials, family law, and a multitude of other subjects taught by veteran judges. The newly appointed student judges, like their predecessors who have been attending the college for over four decades, will become the outstanding jurists for which California is well known. They will be highly skilled in their task to decide a multitude of cases for litigants seeking justice.
But the article about the Judges College highlights the concern over expenditures during a budget crisis. Some judges critical of the Administrative Office of the Courts' budget and its decision-making process have voiced their opposition to court closures. They argue that cuts should be made in other quarters, namely, the huge bureaucracy of close to 1,000 employees at the AOC. This, in turn, drew criticism from the Chief Justice who questioned the motivation for their opposition. But it appears that these judges have agreed to take a voluntary pay cut to proportionally match the mandatory cuts for court employees whether the courts are open or closed.
During governmental budget crises, there is no shortage of views about where best to make cuts. Our Legislature was at an impasse for months over the issue. I am sympathetic to the judges who wish to keep the courthouse open at all costs. After all, the courts are here to serve the public. But the same can be said about numerous programs that serve the public that have been discontinued during this unprecedented budget shortfall. Wherever a budget cut is made, there will be a legitimate argument that some other cut should be made instead.
I hope that in the future criticism will be expressed openly and respectfully without insults and invective from either side for those expressing the other point of view. Some judges I interviewed for this column expressed the belief they may suffer repercussions for candidly offering their opinion about budget cuts. They pose the hypothetical that a few judges may not be able to take a voluntary pay cut because of house or medical payments, college tuition for their kids, or other financial concerns. Will their names be published? I hate to say it, but that may happen even if they have never expressed a view in their life. Some staff writer somewhere may just want to publish a list. Oh dear. I didn't give anyone an idea to do this, did I?
I spoke with a number of judges about this column and, out of an abundance of caution, promised not to disclose their names. But they all wanted their names to be mentioned. One outspoken judge said he would take the fall for everyone else. But I decided not to mention any judge's name. I don't even want to mention my own name. This is not because anyone can or will suffer retribution for speaking out on a budget issue. But an open, frank discussion about budget cuts is itself bound to have frightful consequences.
For example, one judge I spoke with suggested that during this credit crunch the Judges College should meet for just one intensive six-day week. That is a great money saving idea. But, oh no, that could mean my class could be cancelled. You don't think that writing this column will result in my class…. Forget you have read this column. Don't talk about it. Anything you remember about it, keep it under your hat. I can feel it. A thousand tiny pools of perspiration are beginning to form on my forehead.

What Tangled Webs of Words We Weave

2009-08-04T13:53:00.000-07:00

A long time ago. A really long time ago, when I was a practicing lawyer, that’s how long it was, I enrolled in a Keogh plan. Not so long ago, it was worth something. Why would a young, carefree bachelor (wait a minute, strike the word “carefree”) want a Keogh plan? It might have had something to do with an admonition from my contracts professor in law school at the beginning of the semester. He cautioned that those searching for certainty would best not enroll in law school. At the time the warning seemed counterintuitive. The law was supposed to provide certainty and predictability. But, as I read judicial opinions, I became more and more certain of the law's uncertainty. This well could have stemmed from the uncertainty of my ability to comprehend some of these opinions, or was it the uncertainty inherent in language?

I thought that perhaps I had mastered the uncertainty of language when I tried to make sense of Penal Code section 1203.2a. To give you a taste of what I was up against, here is the first sentence of the statute, all 177 words:

If any defendant who has been released on probation is committed to a prison in this state or another state for another offense, the court which released him or her on probation shall have jurisdiction to impose sentence, if no sentence has previously been imposed for the offense for which he or she was granted probation, in the absence of the defendant, on the request of the defendant made through his or her counsel, or by himself or herself in writing, if such writing is signed in the presence of the warden of the prison in which he or she is confined or the duly authorized representative of the warden, and the warden or his or her representative attests both that the defendant has made and signed such request and that he or she states that he or she wishes the court to impose sentence in the case in which he or she was released on probation, in his or her absence and without him or her being represented by counsel.

Got it? That paragraph is a piece of cake compared to the third paragraph, which I do not have the heart to quote. Suffice it to say, it did not make sense to me on the first read. But my intuition told me that meaning lay hidden in
1203.2a's forbidding density. Want to know what I thought of all this back in 1991? See People v. Holt (1991) 226 Cal.App.3d 962.

Just in case you are not rushing to call up the case, I will share my comments, despite it being unbecoming to quote one’s self. "It is an unenviable chore to consider section 1203.2a. The statute reflects a disregard for careful drafting and contempt for the English language. Meandering clauses in which the subject and predicate are ruthlessly separated from one another, jumps in thought and logic, and a lack of organization make the going difficult." Holt, at p. 965. I persevered in my "trek through the statute's thicket of tangled clauses." I took on the fearsome first sentence and wrestled with its mind-numbing language. I then struggled with other unwieldy sentences and miniaturized them, or, if you will, cut them down to size.

This herculean effort allowed me to pin section 1203.2a's gangly shoulders to the floor so that I could wrest from it meaning, after which I needed a rest. (Sorry, couldn’t resist.)

To once again quote myself, "Our (a sop to my colleagues who concurred) efforts have not gone unrewarded. The statute has a specific meaning that apparently was not discernible to other courts." Holt, at p. 965. That last sentence did not win many friends in those "other courts." And some colleagues in subsequent decisions rejected my interpretation. But a few years later, the California Supreme Court, in a masterful display of erudition, saw it my way. In re Hoddinott (1996) 12 Cal.4th 992. The statute concerns a defendant who has been placed on probation and is committed to prison for another offense. The court that placed him on probation has jurisdiction to impose sentence under certain conditions concealed, I mean specified, in the statute.

Please, it is unnecessary to register your admiration for my unflagging efforts. It's all in a day's work.

But my insecurity about uncertainty remains imbedded in my DNA. And this takes me back to my Keogh plan. It had grown over the years, until recently when it took a nosedive, bringing home to me that sound financial planning (an oxymoron) can still lead to uncertainty. If that wasn’t enough, the geniuses from the financial group who invested my funds in a variable annuity account recently sent me a letter titled, “Supplement to the May 1, 2009 Prospectus.” The letter informs that the following paragraph replaces a paragraph in the Option 1 section of my prospectus. The enlightening paragraph states:

If rebalancing is required, the contract value in excess of 30% will be removed from the Limited Subaccounts on a pro rata basis and invested in the remaining Non-Limited Subaccounts on a pro rata basis according to the contract value percentages in the Non-Limited Subaccounts at the time of the reallocation. If there is no contract value in the Non-Limited Subaccounts at that time, all contract value removed from the Limited Subaccounts will be placed in the Delaware VIP Limited-Term Diversified Income Series subaccount. We reserve the right to designate a different investment option other than the Delaware VIP Limited-Term Diversified Income Series as the default investment option should there be no contract value in the Non-Limited Subaccounts. We will provide you with notice of such change. Confirmation of the rebalancing will appear on your quarterly statement and you will not receive an individual confirmation after each reallocation.

The last two sentences are understandable, albeit, not comforting. But I am willing to bet the seeming gibberish in all the other sentences has something in common with the 177-word sentence in Penal Code section 1203.2a. These impenetrable sentences actually mean something. All I have to do is take the time and patience to decipher their meaning. But first I must read the paragraph in the Option 1 section of my prospectus. Lots of luck finding that. Nevertheless, I think I can gather the meaning of the paragraph by once again relying on my intuition, but here I can do so without enduring the exhausting battle of section 1203.2a. Yes, I think I have it. I lose money.

This all proves that judges' work is not pretty. We must ferret out meaning from perplexing statutes and abstruse appellate briefs. (I leave for another day the task facing those who seek to divine the meaning of appellate opinions and trial courts' statements of decision.) We do not seek praise or a pat on the back for our efforts. I have already alluded to this earlier. It is our job. It is why we get paid.

Speaking of pay, neither do we seek plaudits for our willingness to take a cut in pay to help reduce our state’s budget deficit. That job I leave to our legislators. I would advise them to simply wrestle the budget as I did section 1203.2a. Oh dear, it just occurred to me. They drafted section 1203.2a.

What's in a Name? Everything.

2009-05-28T16:22:00.000-07:00

Last week I was driving home from a luncheon in Palos Verdes. I took the Harbor Freeway north. Please notice I did not say the "110." Everything was fine until I took the transition road to the Century Freeway west. Please notice I did not say the "105."
I have little to say about people who use numbers in place of names other than this: like vampires, they have no souls and suck the life blood out of our language. And also please note I did not say, "I transitioned" to the Century Freeway west. A perfectly healthy noun should not be transformed into a mutant verb.
To make matters worse, the sign next to the transition road labeled the road with the unimaginative "interchange." Despite this shortcoming, there was something refreshing about the sign. It has a name, not a number. It is not "Interchange 39." No, this "interchange" bears a name, the name of a distinguished judge who sits on the Ninth Circuit Court of Appeals. The sign reads: "The Judge Harry Pregerson Interchange." I know and respect Judge Pregerson, but, I have to admit, I am a bit envious. The only thing named after me is my trash can. And I erased my name from the container because a judicial protection officer said it was not wise in this day and age to have my name so publicly displayed. I thought that advice reasonable until some wise guy suggested it should also apply to my opinions.
I can understand how courthouses can be named after prominent judges, lawyers, and politicians who have made significant contributions to the cause of justice. Several names in the Los Angeles area come to mind: Stanley Mosk, David V. Kenyon, Alfred J. McCourtney, and my colleague, Steve Perren. There is also Clara Shortridge Foltz, Ed Roybal, and Ed Edelman. And let's not forget the Mildred L. Lillie Law Library. But a freeway "interchange"?
Through my research I learned that Judge Pregerson earned the distinction of having an "interchange" named after him because he presided over the lawsuit challenging the construction of the Century Freeway. When the case began, Judge Pregerson was a federal district court judge. During the trial, he was appointed to the Ninth Circuit. Nevertheless, he continued to try the case and see it to completion. Good for him. No new judge should have to jump in the middle of that mess and get up to speed. And it would be unthinkable to everyone, except the side that ultimately lost, to declare a mistrial and start all over again. It doesn't take a genius to conclude that without Judge Pregerson's decision there likely would have been no Century Freeway for some time to come.
I wondered why they didn't name the whole damned freeway after him instead of a measly "interchange." Further research supplied the answer. The freeway was already named after someone. It is officially known as the Glenn Anderson Freeway. Glenn Anderson was the congressman representing the South Bay who fought to have the Century Freeway built.
Official names given to freeways and "interchanges" do not mean all that much. If I had asked instructions on how to get from Palos Verdes to downtown Los Angeles, do you think a gas station attendant would say: "Take the Glenn Anderson Freeway to the Judge Harry Pregerson Interchange"? Not a chance, particularly when today we don't have gas station attendants. Would the guy sitting behind the bulletproof glass in his sealed enclosure know the answer to my question? Of course not.
Nevertheless, I think it would be nice to have even a portion of a road named after me. I don't expect anything so magisterial as a freeway, let alone a transition road, but how about a stop sign, or maybe a curb? The Presiding Justice Arthur Gilbert loading zone would do. But, the way we name things these days, it would probably have a number in some bureaucratic register: "Loading Zone #349, aka, the Presiding Justice Arthur Gilbert Loading Zone." I would prefer it be a passenger loading zone where people, not cartons of suppositories, are "unloaded" (another word I hate). I would like my passenger loading zone to be in front of a prestigious building. I can just see the dispatcher who hails the next taxicab at LAX (I mean Los Angeles International Airport) for the Ambassador from Ghana. "Please take His Excellency to the Presiding Justice Arthur Gilbert Loading Zone at the Beverly Wilshire Hotel."
To get such recognition, I have to have decided a significant case. Wait a minute! Speaking of Beverly Hills, it just occurred to me that I have as much a claim as Judge Pregerson to be named after a byway. He has his case. I have mine. In Friedman vs. City of Beverly Hills, 47 Cal.App.4th 436 (1996), I wrote the opinion that upheld the right of the City of Beverly Hills to give preferential parking to residents. Think the City Council would go for the "Justice Arthur Gilbert Preferential Parking Zone"?
But it is hard to buck the tide in favor of numbers over names. The battle was lost years ago. Before he went into politics, our feisty Senator S.I. Hayakawa lost the fight against the phone company who scuttled enchantingly named telephone prefixes in favor of numbers. The San Francisco-based Anti‑Digit Dialing League simply could not connect. And we lost such charming names as Hillside, Exbrook, Crestview, Poplar, and Murray Hill to area code numbers.
But in many cases it is appropriate to hide names to protect privacy. Jurors are designated by numbers. In dependency and juvenile cases, California Rules of Court, rule 8.400(b)(2) provides that appellate opinions refer to the parties' last names by their initials. The reporter of decisions argues that this approach does not provide sufficient protection and that we also should use initials for the first names. When the first name is unusual, the court rule sanctions that approach. But if we use this method in all cases, the opinion will read like a badly written law school hypothetical. Aren't they all?
This practice could even spread to the judiciary. Lawyers might go for it. If judges are known only by their initials, lawyers would have no reticence criticizing the judges' misperceived deficiencies. Query: Should we use both or one initial? It is a tough choice for me. If I use the initial of my first name only, I could be confused with Hester Prynne. If I use the initials of my first and last name, I could be confused with the Attorney General. Affirming a 105-year prison sentence in a criminal appeal and signing it "A.G." might seem biased. At times I feel as estranged from our impersonal world as was Franz Kafka. I think I will follow his lead and write a novel about the evil that permeates our world. The first sentence will read, "Call me Arthur G." Mmm… maybe we should drop the G.

THE FORGETFUL TOURIST

2009-02-02T17:04:00.000-08:00

Observant readers of the Daily Journal have noticed that my column has not appeared in the last few months. In November of 2008, my wife, Barbara, and I took an around the world odyssey to glimpse the wonders of the world. My colleague Justice Richard Mosk and his wife, Sandy, persuaded us to join them and 80 other inquisitive types who, like us, did not see the economic crises coming when they signed up. The plane was a private 757 jet, the interior of which was reconfigured with 88 first-class lush leather seats. So November was shot, and then December was spent sleepwalking in the fog of jet lag. The fog sat on silent haunches, but did not move on until January.
I could tell you about the “House of the Sun” at Machu Picchu; the towering moai of Easter Island; snorkeling off the coast of Australia at the Great Barrier Reef; the elephant ride around Angkor Wat in Siem Reap, Cambodia; the spiritual aura of the Jokhang Temple in Lhasa, Tibet; the stunning beauty of the Taj Mahal in Agra, India; the giraffes and zebras stopping by our van for a visit in the Serengeti National Park in Tanzania; the colossal grandeur of the Temple of Karnak in Luxor, Egypt; the walk through the gorge known as the Siq in Petra, Jordan, where one comes upon the intricate façade of the Treasury, the temples and brilliantly conceived dams and waterways built by the Nabateans more than 2,000 years ago; or the bewildering maze of cobblestone alleyways, as they were hundreds of years ago, twisting and turning in all directions in the Medina of Fez, Morocco.
But I won’t. A more edifying story concerns the relationship between me and Fred, my backrest. It was similar to that between Tom Hanks and “Wilson,” the volleyball, who (yes, “who” is the appropriate word) was Hank’s best friend on a deserted island in the film "Cast Away." As the story unfolds, discerning readers will detect the principles of negligence, and issues of excusable neglect and guilt bubbling below the surface.
Our tour was scheduled to leave from Ft. Lauderdale, Florida. But to get to Florida, we flew steerage class to Miami from LAX, we being my wife and my friend, Fred, who gave much needed support for my lower back. Fred was there to prevent my back from "going out," which could render me incapable of climbing the 350 steps of the Potala Palace in Lhasa, Tibet, or of surviving the lurching of our van as we accelerated to avoid a charging elephant in Tanzania.
To ensure that I would not forget to take Fred from location to location, I wrote in the first page of my travel journal - "DO NOT FORGET FRED." We landed in Miami, and I grabbed my "things." To be specific, my windbreaker, carry-on bag, and, of course, Fred.
We disembarked and squinted in the glare of the terminal where the Mosks were waiting for us. First class disembarks first. I placed my “things” on a dark-colored chair and excused myself to use the restroom. I returned and grabbed my "things" and we proceeded towards the exit. At the end of the terminal was an elevator that opened onto a platform where we boarded what appeared to be a subway car that transported us along tracks to the baggage area.
The Mosks accompanied us to the baggage area even though they had no luggage to collect. Out of an abundance of caution, Richard, known for his carefully crafted opinions, sent his luggage on the week preceding our trip to the hotel in Ft. Lauderdale. Months earlier, he had cautioned me: "Should the airline lose your luggage, you and Barbara would be in big trouble without luggage for a month." (The foregoing sentence is the expurgated version.) However horrific this would be, gathering all that was necessary the week before departure, rather than the night before, was a task beyond my capability. After several warnings, I said, "Richard, don't worry." (Another expurgated version.)
Yet, the Mosks accompanied us to gather our luggage at carousel #23. We had planned to share a cab for the half-hour drive from Miami to Ft. Lauderdale. We waited and waited; our luggage did not appear. A young lady wearing an American Airlines uniform announced in an indifferent tone, while she popped her gum, that there would be no more luggage arriving on that flight. I deserve congratulations on the manner in which I conducted myself after her insouciant announcement. I did not actually strangle her. I do not believe the virtual strangulation played out in exquisite detail in my mind's eye counts as even a misdemeanor. I also had the presence of mind to say in a cool, quiet tone, before Richard could utter a word, that I appreciated his not saying, "Didn't I tell you so ----." Dear reader, I leave to your discretion what word to place in the blank.
It was close to midnight and I suggested to Richard that he should go on to the hotel in Ft. Lauderdale while we tried to straighten out the luggage problem. "Are you sure?" he said as he grabbed Sandy's arm and walked out of the terminal.
As I seethed over my misfortune, I took solace in the knowledge that we had the entire next day in Ft. Lauderdale, time enough, I hoped, for the airline to locate our luggage. Minutes later, the young baggage lady announced with a barely discernible lilt in her voice that in fact more baggage from our flight would be arriving shortly on our carousel. Our bags emerged from the cave of darkness and landed side by side on the carousel which took them on the short journey to our eagerly outstretched hands.
We dashed out of the terminal, but the Mosks had already left. We hailed a taxi and loaded our luggage in the trunk and our other "things" in the back seat. So what if we had to pay the full fare and not share it with the Mosks? Things were working out. Just as the cab began to pull out from the curb, I realized things were not working out. Fred was missing. The episode that immediately followed this discovery I dare not relate. I am not a large person, but I became King Kong on the tower of the Empire State Building.
Let's just leave it at this: Barbara talked the cabby out of calling 911, and the back of the cab is now in reasonably good condition. I did make a significant contribution to the 2009 edition of the Dictionary of Obscenity and Taboo. The cabby suggested I go back to the baggage area to see if I could locate Fred. I leapt out of the cab and raced back to carousel #23, now empty, but still snaking around on its journey to nowhere. The young woman was still there chatting on a cell phone and still popping her gum. “You didn’t happen to see.…” I said, but then caught myself. Of course she hadn’t. I had left Fred in the terminal. His color is dark brown and I had set him on a dark brown chair. He had blended in with the chair. How would you have ruled on my motion for relief because of excusable neglect?
To get back to the terminal I would have to go through security. I could imagine how smoothly that would go. I had no baggage and no ticket. Assuming I could pull that off, I would then have to wait for the little subway train to take me to the terminal. It would take forever. And it was quite likely that someone had flagrantly filched Fred. Forget it. Dejectedly I walked out of the terminal and looked for the cab. It wasn’t there. Cabs are not allowed to park for more than a few minutes at the curb where passengers are picked up and dropped off. For the past fifteen minutes, my wife had been in the cab with its meter on, circling the airport, in a strange city. I paced back and forth trying to remember where the cab had been parked.
Then I saw Barbara waving frantically from a cab. I ran to the curb that goes along the outer circle and the cab came screeching to a halt. I climbed in without Fred. Barbara took my hand and reassured me that someone who needed Fred had found him and would put him to good use. That provided a modicum of comfort. Yet, I couldn’t help but feel that I had betrayed my friend. I knew how painful it had been for Tom Hanks to leave his buddy Wilson bobbing around in the ocean.
We arrived at the hotel at Ft. Lauderdale and popped into bed exhausted. The next morning we bumped into the Mosks who had just retuned from a stroll into town. Sandy told us about a medical appliance store a short ten-minute walk from the hotel. They had an assortment of backrests. I bought one, Sylvia, who accompanied me on the trip around the world. She was a congenial companion.
I am not sure there is any moral or lesson to be learned from this unremarkable story of loss and recovery at the outset of an extraordinary trip. Maybe it teaches us about the whimsy of fate. Negligence leads to a loss, and fate steps in with a solution--sometimes. Fate also could have given any one of us the life of a child struggling to survive the harsh streets of Agra, India. These children, who surrounded us with trinkets to sell as we entered the grounds of the Taj Mahal, would likely never escape from their hard gritty lives so graphically portrayed in “Slumdog Millionaire.” The unrealistic ending of the movie seemed to satirize a romantic "Bollywood" ending that these children would never experience.
The loss of a backrest is no big deal. By the end of the trip, I learned that losing Fred taught me not to beat myself up for my negligence. I pass on this advice. Lose a summary judgment motion? Don't fret, just learn from the experience to do better next time. This philosophy works—most of the time.
Last week I was on a panel at a lawyer’s convention in San Diego. I got a ride and took Sylvia with me. I thought I might write at the top of my notes not to forget her when I leave the hotel where the convention was held. I wonder if it would have mattered if I did. I could go on, but this story is more prosaic than edifying. No point in again submitting to you a motion for relief. On the plus side, there is always next time. Wait till you see the 2010 edition of the Dictionary of Obscenity and Taboo.

TAKING IT PERSONALLY

2008-12-11T16:36:00.000-08:00

Division 6 of the California Court of Appeal 2nd District, where I do my job, is located two blocks from the ocean in the beautiful city of Ventura. The name of the city is in fact "San Buenaventura." But “Ventura” seems fine with most of the residents. In this respect they are unlike many of their counterparts who live in the emerald city up north and cannot abide the appellation “Frisco.” I suppose Frisco sounds boorish in comparison to the more euphonious Ventura.
But how about “L.A.”? What could be more impersonal than initials to refer to the City of Angels? Yet few people in Los Angeles are offended by this stunted sobriquet. However one refers to Los Angeles, it is no less a vibrant city, and too preoccupied managing its cultural, economic and diverse interests to be self-conscious about its nickname. Yet, I wonder how the women of Philadelphia feel about their historic city's motto. I think it should be called "The City of Sisterly and Brotherly Love."
A reference to a city is only a word, but, depending upon the context, words often carry deeply felt emotions. Is San Francisco “liberal” and Ventura “conservative”? Whatever those terms mean, the feelings they evoke depend on whether we are talking about politics, cultural values, economics or clothes.
Ventura’s yearly summer county fair gives the community an important tie to the past. So, in that respect, I suppose the fair is an event that reflects a conservative value, not necessarily a political agenda. 4-H club kids caring for pigs, pygmy goats, prize turkeys, cattle, proud roosters (are there any other kind?) and rabbits speak of a past age instead of a new age. Most rings were in the noses of the bulls instead of the people. The very name, “fair,” connotes balance and acceptance.
At the fair was a hypnotist. She enlisted volunteers from the audience to come on stage and act stupid. I wasn’t impressed. I do that without being hypnotized. Some would argue that this column is an example. My friends asked the hypnotist to turn me into a political conservative. It didn't take. She confirmed that no one will follow unreasonable commands. I do not want to be labeled politically as a conservative or liberal, but I am not much concerned about being viewed as a conservative dresser.
This just proves that words matter according to the context in which they are used. But those who use words to attack individuals for their opinion defeat rather than advance their own point of view - particularly in judicial opinions.
In Boumediene v. Bush, 128 S.Ct. 2229 (2008), our high court held that the protections of the Detainee Treatment Act were insufficient and that alien detainees at Guantanamo were entitled to the constitutional protection of habeas corpus to challenge the legality of their detention. In a separate dissent Justice Antonin Scalia disagreed with the majority and agreed with Chief Justice John Roberts' dissent that the act provided "the essential protections that habeas corpus guarantees." He further argued that all historical evidence showed that the writ of habeas corpus would not be available for aliens captured abroad.
But what struck me about Scalia's dissent was the manner in which he criticized the justices in the majority. He scored those colleagues for making the war on Islamic radicals harder on our country, which “will almost certainly cause more Americans to be killed.” The weak adverb “almost,” to modify “certainly,” certainly did not do much to let the majority off the hook. At least Scalia is almost, but not absolutely, certain the justices in the majority will cause Americans to die. He ended his dissent with the warning, "The Nation will live to regret what the Court has done today."
Whatever the merits of Scalia’s dissent, it was not enhanced by the harsh moral indictment of his colleagues. A defendant charged with a crime may not suffer a conviction solely because of a judge's ruling that the defendant was denied one or more constitutional rights. Whether the judge made the right or wrong ruling, he or she is “almost certainly,” I mean certainly, not the cause of harm the defendant may inflict on some future victim.
Last month I attended a symposium at Peppperdine School of Law entitled “Lawyering and the Craft of Judicial Opinion Writing,” moderated by Professor Douglas W. Kmiec. The panel members included U.S. Supreme Court Justice Samuel Alito, Dean Kenneth W. Starr, 10th Circuit Court of Appeals Judge Michael W. McConnell and former U.S. Solicitor General Walter E. Dellinger.
Starr said that a textual approach to the law is the preferable one. Alito suggested that judges should start with the language of a statute, and apply the law. This may involve interpreting the law, but it does not involve drafting the law. Alito voiced his disagreement with Judge Learned Hand’s dictum, “The best way to misinterpret a statue is to read it literally.”
But to literally take a statue at face value in some cases would produce an absurd result that would be contrary to the Legislature's intent. An old but no less vital case, Riggs v. Palmer, 22 N.E. 188, 189 (1889), gives us an example: "There was a statute in Bologna that whoever drew blood in the streets should be severely punished, and yet it was held not to apply to the case of a barber who opened a vein in the street." No reasonable court would hold a barber liable because he nicked the person he was shaving. The soccer mom devoted to her son, one day in exasperation over his misbehavior, says, "Johnnie, I'm going to kill you." No one could seriously argue she has made a terrorist threat. Alito acknowledged that it was unremarkable that the majority and dissent in Dist. of Columbia v. Heller, 128 S.Ct. 2783 (2008), the gun control case, reached different conclusions. This, even though Scalia, who wrote the majority opinion, and Justice John Paul Stevens, who wrote the dissent, were both drawing their conclusions from their respective examination of the Second Amendment's history. Alito said this divergence of opinion was not "disturbing."
This takes me back to Scalia's dissent in Boumediene. It was disturbing, not because it presented a historical view about the application of habeas corpus that differed from the majority view, but because of its accusation that the majority has harmed our country. A carefully drafted opinion that will persuade is one in which the author carefully chooses and arranges the words to make an argument. When the argument becomes a personal attack, it loses its vitality and the judiciary suffers. Perhaps that is why Alito joined Roberts' dissent, and not Scalia's.
Maybe the hypnotist at the Ventura County Fair could drop by Scalia’s chambers and “put him under.” While he is in a hypnotic state, she could suggest that in the future he argue his points without personal denunciations. But it probably may not work. I fear he just might think the suggestion unreasonable.

A Good Limerick is an Oxymoron

2008-05-06T13:33:00.000-07:00

There is a rumor working its way through the courts: the Judicial Performance Commission is investigating a trial judge because he wrote limericks in a statement of decision. If this is true, I bet they were bad limericks, or were insulting to a litigant. A five-line poem that opens with “There once was a . . . ” where lines one, two and five rhyme with each other, and have three metrical feet, and lines three and four rhyme with each other and have two metrical feet, should be outlawed. I hold limericks in such contempt that I would never admit to writing several or even one.

A few years back, my wife and I attended the opera. We sawVerdi’s La Traviata. The program notes told of his lover, Guiseppina Strepponi, whom he eventually married. She was a superb soprano and starred in his early operas, notably Nabucco when it was first performed in 1842. Ms. Strepponi was an important influence on the great composer, and an obvious inspiration that gave rise to his masterpieces. I was so moved I immediately scribbled out a poem on my program.

At the intermission I read it to an elegant lady, who sat down next to me on a large couch in the salon where I was waiting for my wife who was in the restroom. She smiled and asked if I liked the opera. “Yes," I answered, and said, “I also found the program notes about Verdi’s lover interesting. Would you like to hear the beginning of a poem I wrote about Verdi and his lover?” Before she could answer I read it to her.:

Guiseppina Strepponi

Loved Verdi and spumoni,

Was his lover, not a crony,

His muse, his rigatoni.

Can you believe it, she got up from the couch without saying a word? And my poem was not a limerick. It is odd how poetry can upset people. But if a judgment causes a litigant to pay lots of money or lose his freedom, I suppose he does not want to read:

There once was a crook named Jones,

He got all his funds through loans,

His life was once sunny

When he took plaintiff’s money,

This judgment will make him atone.

We must not take words for granted. They are more than mere sounds from a throat or squiggles on a page; they can deliver great emotional force. The limerick, the lowest form of poetry could make any litigant feel demeaned. Because a limerick is short, when it mocks, the words can easily hit their target. But larger grouping of words in opinions or statutes are often regarded with so little care, that they are misinterpreted, or simply misunderstood.

Take for example California Penal Code section 1203 from which I tried to wrest some sense in People v. Holt, 226 Cal.App.3d 962, 966 (1999.) The first paragraph of the statute reads: "If any defendant who has been released on probation is committed to a prison in this state or another state for another offense, the court which released him or her on probation shall have jurisdiction to impose sentence, if no sentence has been imposed for the offense for which he or she was granted probation . . . . " So far it makes sense, but then it goes on and on to say "in the absence of the defendant, on the request of the defendant made through his or her counsel, or for himself etc." This one sentence continues with its meandering clauses to a 177 word confusing finish. Sentences in the statute's remaining four paragraphs are not any better.

Assume you read: “They are frightening judges.” What does that mean? Are the judges scaring the lawyers, or vice versa? Context may explain what the sentence means, but we should not have to guess what it means. Most importantly we should never take anything we write or read for granted. The following case illustrates my point. I use it as an exercise in a writing course I teach to judges.

Defendant, a writer of limericks asserts that plaintiff R. Frost has not taken the road less traveled. Plaintiff brings an action to prove that he has. The following is his testimony:

Two roads diverged in a yellow wood,
And sorry I could not travel both
And be one traveler, long I stood
And looked down one as far as I could
To where it bent in the undergrowth.
Then took the other, as just as fair,
And having perhaps the better claim,
Because it was grassy and wanted wear;
Though as for that the passing there
Had worn them really about the same.
And both that morning equally lay
In leaves no step had trodden black.
Oh, I kept the first for another day!
Yet knowing how way leads on to way,
I doubted if I should ever come back.

I shall be telling this with a sigh
Somewhere ages and ages hence:
Two roads diverged in a wood, and I--
I took the one less traveled by,
And that has made all the difference.

At the conclusion of plaintiff's testimony, defendant does not cross-examine, nor does he produce witnesses. He rests and argues plaintiff has not sustained his burden of proof.

Judgment for plaintiff or defendant? In a paragraph or two write a Statement of Decision supporting your ruling.

What do you think? Valedictorian speakers at high school graduations often use this case to conclude that we, like plaintiff Frost, should courageously strike out on her own and take the road less traveled.

But is that in fact what Frost did? Some judges decided yes. They argued that if, after seeing and hearing plaintiff Frost testify, they were convinced he was credible, he would have proven his case. The evidence he presented was not disputed and he was not impeached through cross examination.

Others argued that even crediting Frost’s sincerity, he failed to prove by a preponderance of evidence that he took the road less traveled. Through his own testimony he established that neither road had been exposed to more or less wear than the other. He thought one road might qualify as less traveled because it was “grassy and wanted wear.” Yet, he acknowledges that usage of these roads had worn them about the same. The morning Frost plaintiff saw the roads, they were covered with apparently the same amount of leaves, and neither road showed evidence of travelers setting foot on them “in leaves no step had trodden black.”

Retired San Diego Superior Court Commissioner James L. Duchnick offered a poetic analysis:

There once was a poet named Frost

Who claimed, in poor rhyme, he was lost

But those in the know

Could with ease clearly show

Both his syntax and purpose were crossed.

He admitted both paths were the same.

At the time no clear difference could he name.

But with hindsight he poses

We should laud him with roses

For a bravery of choice he would claim.

In summation, his effort is clear.

To engender a motive to cheer.

But the choice made that day

In an offhanded way

Was by a traveler who never knew fear.

"Judgment for Defendant."

Los Angeles Superior Court Judge David W. Stuart elevated the limerick to a new high with:

There once was a poet named Frost.

Who stood before two roads that crossed.

He looked at the first,

And thought it the worst,

Took the other and got himself lost.

I would argue that Duchnic and Stuart were justified deciding the case via rhyme. If the litigant uses poetry, why not the judge?

But, in most cases, poetry, and limericks, in particular, do not belong in a judge’s ruling. I know this because I listened to my inner voice for advice. This is what I heard:

There once was a judge not so solemn.

His opinion solved many a problem.

He often told jokes,

To all the good folks.

But limericks he saved for his column.

HaveI Couldn’t Done It Alone- Only I’ll take the Credit.

2008-01-23T17:40:00.000-08:00

Credit. I’m no different than anyone else. I take it whenever I can. But it makes me anxious. Credit, no matter what type, has its downside. Just ask those struggling to make mortgage payments.

Politicians take credit for their speeches—particularly the ones that go over well. Never mind that seldom do they write their own. In fact, everyone knows they have “speech writers.” Nevertheless, if the speech bombs, the politician, not the speech writer gets the “credit.” Think “nattering nabobs of negativism” was the product of Vice-President Spiro Agnew’s creative mind? (Does anyone remember Spiro Agnew? He was convicted of tax evasion and money laundering.) The credit for the alliteration belongs to William Safire. But Agnew got the “credit” for the remark. Had he gone to prison he may have also gotten credits for good time.

Historians usually write their own books, but not every word on the page always comes from their pen. Some of the few who have become “popular” are so busy cranking out books that they rely on research assistants to draft a paragraph or two, or maybe even a chapter. A brilliant or incisive paragraph earns credit for the historian and continuing employment for the research assistant. But when the assistant gets it wrong, or plagiarizes from another work, the historian is discredited.

This takes me to the “Hollywood writers” strike in the news these days. Can you believe it? The late night comedians rely on writers to pen their witty lines. Imagine, they get laughs for jokes created by faceless writers. Where are they without their writers?

Without a good writer, a comedian can fall on his or her face. Assume a late night host starts out with a joke. “A dog, a parrot and a moose go into a bar.” Then what? How would he finish the joke without a writer? The bartender says, “So what’s the joke?” That is the joke. Get it? If you are asking the same question as the bartender, that means you did not get the joke. But someone has to write the joke, the whole joke, not just half the joke. No writer, no joke. But the “joke” about the dog, parrot and moose that not everyone got had to be written. We would not be having this discussion had the joke not been written. No matter that it would have been better if the joke had not been written in the first place.

What is a joke is the way judges are treated. We judges often get the blame for society’s ills. We are accused of coddling criminals or denying justice, over protecting or under protecting the environment, favoring or being hostile to business or workers.

I suppose that is why it is important for us to take credit now and then. We will gladly take credit for a decision that earns praise. But like the late night comedians, we do not always write every word of a decision or opinion for which we take credit. There it you have it. The secret is out of the bag.

Trial judges do not always draft statements of decision. The winning side is glad to accept that chore. A busy trial judge sitting in a law and motion department may rely on a research assistant to draft a few sentences or a paragraph or two in a minute order.

Appellate court justices have full time research attorneys. And this is where my anxiety comes in. What if the research attorneys joined forces with the Hollywood writers and went on strike? Why would they want to do that? The residuals our opinions generate are emotions, not revenue. And that I share in abundance with my staff. Retired Justice Robert Thompson who co-authored with John Bilyeu, “Law Clerks and the Judicial Process” California University Press (1980) cautions that an over-reliance on law clerks can lead to the “bureaucratization of justice” at the expense of a fresh intellectual development of the law. I do not agree with that assessment . But Thompson may have a point when he suggested that if research attorneys have a hand in drafting opinions, their names should be listed in the California Reports. They could then at least take some of the blame.

But what if the research attorneys out of boredom or perversity, did go on strike? The thought of having to draft every word of every opinion makes me willing to negotiate at the first hint of a strike. But on second thought, perhaps my fears are unfounded. Writers are not always held in high esteem. Was it Samuel Goldwyn who referred to his screenwriters as "the mice" ? Some producers have suggested that television can survive without writers.

Crises fosters innovation. Maybe the Court of Appeal too, can survive without written opinions. The screen writers strike could be a sign that it’s time for the bugle to play silent taps for written opinions. In its place will be unwritten opinions. To those who say a silent bugle and an unwritten opinion are impossibilities I say, “Not.” (In view of the delicate nature of this subject, no research attorney has had a hand in drafting any part of this column.)

My idea just could work. There is a well-known concert hall composition, John Cage's work, “4'33" (Four Minutes, Thirty-Three Seconds). It is a silent piece of music in which a pianist sits at the Steinway on a concert stage and does not play the three movements of the composition. All one hears is the nervous titters and coughs of the audience. Some think the piece is designed to make listeners truly aware of sound. His second composition in this genre, “5’07” I hear is a real show stopper.

My unwritten opinions would follow John Cage’s

model. The opinion, like Cage's composition, would have a title, e.g. People v. Lamont Cranston. In this respect, the unwritten opinion, does not abjure the written word. In civil cases I would state whether the judgment was "affirmed" or "reversed." In criminal cases, the name of the case would suffice in most instances. After all, most are affirmed.

Some might argue that this approach erodes predictability in the law. Perhaps: but is it so predictable now? Retired judges who have entered the lucrative world of private judging argue forcefully to their clients that going to trial is a "real crap shoot." Lawyers would still file briefs, requiring an appellate judge to cut through forests of invective and scorn. She or he will get to the same result that was reached in the past. But now no need to explain it all in a dense convoluted opinion.

It just occurred to me now that I have written most of this column, that I will not get away with filing unwritten opinions. The California Constitution, Article 6 section 14, requires that our "decisions be in writing with reasons stated." I know how picky the Supreme Court can be. It will probably decide that a case name and the word “affirmed” or “reversed” is insufficient to constitute a written opinion. Darn! Jay Leno is writing his own jokes, so if there is a research attorney’s strike, I suppose I will have to write my own opinions in their entirety. Believe me you will know the difference. You won't see a bunch of citations and stilted legal language. Here’s one I wrote as an example.

“Defendant broke into a house and took lots of things. The jury decided he is a burglar. He is. People saw him do it and he admitted to the police he did it. He whines that he is not guilty, the judge hated him, and his sentence to state prison is too harsh. Only a ass would believe that and the law is not a ass.”

It’s short, punchy, and gets right to the point. That is the kind of opinion I might write. Only, I wouldn’t take credit for it.

Jazz and Judging

2007-11-26T14:52:00.000-08:00

A person sitting next to me on the plane told me about his recent sex change operation. She and I both knew it was unlikely we would see each other again. I suppose that is why she could talk about this highly personal matter to a stranger. (I wonder if she was as frank with the blind date she had that evening?)

Columnists often write about personal matters. That is because when the columnist writes the readers have not yet been determined. Easier to be revelatory to a faceless inchoate readership than face to face with someone the columnist knows. The act of writing in the columnist’s present is past during the reader’s act of reading. Einstein no doubt would endorse the principle that “The reader’s present is the columnist’s past.”

This column, involving a delicate personal subject, I have already written and you will soon read. It is intimately related to the federal judiciary. By the way, while you are reading this column, I have already forgotten about it. I am working on something else. But it is not something I knew about when I wrote this column. Get it?

So to continue, no matter what the function or event, federal judges are always introduced first. Then when everyone is truly bored, they introduce the state court judges. A few months ago I spoke at the induction ceremony of a well-respected state trial judge, Judge Valerie Baker- Fairbank who had been recently appointed to the Federal District Court. Needless to say, many of her state court colleagues were present and joined the admiring audience, the numbers of which were so large they poured into adjoining courtrooms to see the ceremony on TV screens.

The judge presiding over the ceremony graciously welcomed everyone and then began to individually introduce the federal judges present from both the 9^th Circuit and the trial bench. The accolades and encomiums made the inhabitants of Olympus envious, “the brilliant, the scholarly, the genius, the distinguished.” And then a recitation about the judge’s hobbies, blood type, awards and honors dating from grammar school. Then it came to the state judges. “Would you all stand and be recognized”- two seconds later-“that’s enough, sit down.”

But the real reason federal judges have it made, is that unlike state judges, they do not have to run for election. A federal judge can close down the City of Los Angeles with impunity. A rebuke from the press or a higher court may elicit a yawn or shrug, but they are in office forever. Impeachment? Not likely. From the creation of the federal judiciary to the present, only thirteen federal judges have been impeached, and six of those were actually convicted.

Speaking of the federal judiciary takes me to my personal matter. It is my colonoscopy, a subject I had discussed years ago in my Daily Journal column (March 1995) when I was younger and less discrete. The colonoscopy of which I speak this time is a different one. Least you think this evidences a desperation for material, it is not exactly the colonoscopy itself that is pertinent, but instead, the conversation with the anesthesiologist.

I received a call the day before the procedure informing me that the anesthesiologist would like to talk to me the next morning when I come in. It is the day before when the “prep” occurs. The “prep” is not a picnic. In fact picnics are not allowed. I was reading briefs, but it was hard to concentrate, what with a liquid diet and constant interruptions that reminded me of the quality of some of the briefs.

So early the next morning I was on a gurney with a needle in my arm receiving an IV, waiting for the doctor to do to me what I do to attorneys at oral argument. I was a little groggy when the anesthesiologist came in. He broached a subject of great importance- did my insurance cover his services? I assured him that if it did not I would gladly pay his fee. To prove it, I agreed to sign the form he thrust in my hand. Of course the words were a blur, and for all I knew, my signature could make him the new owner of my house.

As he browsed through the charts he saw that I was a judge. “Oh you’re a judge,” he said in a higher pitched voice. He took the form out of my hand before I could sign it. He asked what kind of judge I was. “A fair one,” I said. He smiled nervously. “What court?” he asked. “The Court of Appeal,” I said. “9^th Circuit?” he asked. “No,” I answered, “my court is the state’s counterpart of that court.”

In a nanosecond he thrust the form back in my hand and directed my attention to the signature line. It was only fitting that after signing I should have a colonoscopy. I bet had I uttered the words “9^th Circuit” even out of context, I would not have had to sign the form.

But these days I have it as good as federal judges. That is because I am in what state judges call their “federal term.” That is a euphemistic shorthand way of saying, “ I am not running for re-election.” I can assure you that I have never looked over my shoulder when ruling on a high publicity case, or controversial matter. If the public doesn’t like or misunderstands my ruling, well that’s how it is. It goes with the territory. If there is a chance that I may be turned out of office because of a campaign waged against me by an extremist group with a personal vendetta against me, so be it. But in my “federal term” if those fanatics don’t like my rulings they can suck eggs----

Sorry, I got a little carried away. Where was I? Oh yes. So last year the voters saw fit to return me to office for a 12-year term. This has to be my federal term, right? I mean I am not going to stay that long--am I? I don’t want them bringing me orders to sign at the In Need of Lots of Care and Attention Residential Facility. “Here’s a writ petition that seeks to close the 405 Freeway. Just give the judge a little shake and wake him up. If he knows who he is, we will ask him if he is going to grant or deny it.” That could happen if I stay to the end of my term in 2019.

But in truth I kind of miss the edgy insecurity that comes with running for election. Most of the public have little or no criteria to make an informed vote. You never know what gets or loses votes.

Many state judges engage in a variety of other pursuits when they are not judging. Some sky dive, others crochet. Some run marathons, climb Everest, explore the North Pole, garden, act, sing, box, wrestle, write novels. The people they encounter in these endeavors could be a source of votes.

In off hours I sometimes play the piano in gigs with a jazz combo. The law’s seamless web stretches wide. There is a remarkable affinity between jazz and judging-lots of improvising. But when I play the piano, I don’t want anyone to know about the judge thing. Wouldn’t want to lose votes over a bad chorus of “Stella by Starlight.” But I did get a vote in last year’s election because of my solo on “Prelude to a Kiss.” It was from Charles Embree, a wonderful artist who had studied with Thomas Hart Benton. He is also a talented writer. For many years he wrote short stories for Esquire magazine about jazz musicians under the nom de plume, Riff Charles. He wrote me,“ Not all judges are piano players, but certainly all piano players are judges. They sit on a bench and hand down decisions to fingers directing them on which key to strike in what order and when. The sound heard is the soundness of the judgment rendered. If the music is select, you must elect! Based on this argument you will be receiving my vote in the upcoming contest.”

Embree’s incontrovertible logic and his elegant writing convinces me not to be such a malcontent. When I had to run for election I complained, and here I am in my federal term nostalgic for elections. I think I will just settle down and enjoy as much of my federal term as I decide to serve. Why fret? Everything came out all right in the colonoscopy.

What Goes Around Comes Around--But Not Always

2007-08-15T17:04:00.000-07:00

A few months ago I spoke at the investiture of Federal District Court Judge Valerie Baker Fairbank. One of the other speakers, a retired senior partner from a well-known law firm, praised Judge Fairbank for her intelligence and keen intellect. He admired her work on the Los Angeles Superior Court. He noted that when she had presided in law and motion, she read all the cases he had cited in his brief. I can tell you that got me and all the judges in the audience thinking.
After that revelation, I will even glance through a law review now and then. The other day, while leafing through an old issue of the California Law Review, I came across a glowing review of Professor John Hetland's book on Real Estate Secured Transactions. Professor Hetland is the world’s expert on the subject. He was also my professor at law school. And that got me thinking about the last episode of the Sopranos.
In the final scene we see Tony Soprano and his family dining in an Italian restaurant. From previous episodes we know his life is imploding. He is getting older; he has money problems; he has had a rival killed. Suspicious looking people come in and out of the restaurant and pass his table. Will he be shot right there in front of his family? The tension builds. Just when you think something momentous is about to happen, the screen goes dark. As you curse the cable company, the credits show up on the screen. The dark screen reminds you that this is a show that reflects, but is not real life. And like real life there is no tidy end. Stephan Sondheim explored this experience in his musical “Into the Woods.” What happens to some of the characters in fairy tales that seemingly end well? Jack, from Jack and the Beanstalk, Cinderella and Little Red Riding Hood appear to have happy endings. But what about their lives after the "end" of the story? They, like all of us, continue to live in an uncertain world where we are never really out of the woods.
It is the same with trials. They seemingly bring closure to disputes. But even after appeals, reversals, and remands, when the judgment is finally final, is that truly the end? What happens after the lawsuit? Is the judgment collectible? What happens to the parties? For better or worse, their lives go on. So what does this have to do with Professor Hetland? Running across his name reminded me that our lives are more a continuing saga than a series of distinct dramas with discrete endings.
More than four decades ago I was biting my arm in his secured transactions class. That’s what I used to do when I was scared. So what was there to be scared of? Hetland, I mean Professor Hetland, was a nice guy, relaxed and easy going. My fear was engendered by the certainty that I did not understand secured transactions. During his lecture Professor Hetland would casually throw a piece of chalk up in the air. It seemed to hang in the air before landing in his palm. It reminded me of an early scene in Stanley Kubrick’s film, "2001: A Space Odyssey." A primitive tribe, our ancestors, defeats another tribe in a fight. In triumph, a member of the winning tribe throws into the air an animal bone he used as a weapon to kill a member of the lesser intelligent tribe. The bone rises in the air in slow motion and then becomes a space ship floating through space, millions of years later. This is yet another example that endings are illusory.
But getting back to Hetland. As he lectured he took small steps back and forth in a kind of fox trot, all the while nonchalantly throwing into the air his chalk. I was mesmerized. That chalk was my psyche . . . and chalk breaks easily. One day in the middle of his fox trot he stopped and asked a question. It was about A conveying property to B, but C claims to be a bona fide purchaser. " In a 'race notice jurisdiction,' who prevails?" Instantly I was bewildered. How could letters convey property? There was a short pause after the question –followed by "Mr. Gilbert?" I muttered two words. The first word was “Oh.” My heart raced. My palms sweated. My answer---It was not the right answer. Why did I not have the right answer? Because I did not know what the hell Professor Hetland was talking about. Not his fault.
That appeared to be the end of an inconsequential drama one afternoon in law school. After class that afternoon I went to my job at the Lawrence National Laboratory in the hills of Berkeley. I drove a bus around the complex and picked up astro- physicists, mathematicians, and other smart guys and women with slide rules (that's what they used in those days). I dropped them off at various buildings and at the end of the day took them back to campus. I was sure they could figure out what Professor Hetland was talking about.
I felt bad about not having the right answer to the question. That four other students called on after me also failed to give the right answer gave me little solace. Dwelling upon my poor performance in class, I made a sharp turn around a corner of the building that housed something important --the cyclotron. I bent the bus's fender when I clipped it on a railing adjacent to the building. Damn! Two rotten things in one day. Incidentally, I did pass the class, law school, and the bar.
Would I ever again have contact with Professor Hetland and secured transactions? I thought not, but we are not authors of our life’s story. Who would have ever thought I would come to have a hand in shaping the law in California? I bet not Professor Hetland. And who would ever think that some 20 years later Professor Hetland and I would meet up again. I was on the appellate panel hearing a case involving a big land deal. You guessed it. John Hetland was lead attorney for the appellants. Only this time the conveyances were made by real people not letters, and I would be asking the questions. I said to myself, "It's payback time." Of course I would be fair, but I could not help but think that "what goes around comes around." I lay awake nights dreaming up impossible questions for Professor Hetland. There would be no throwing of chalk in the air.
Finally the day of oral argument arrived. We took our seats on the bench and the case was called. And there was Professor Hetland. He looked the same. Doesn't this guy ever age? He looked cool and unflappable. I imagined in Professor Hetland's attic a hideous portrait of him, years older, a twisted depraved visage looking malevolently at the world. I redirected my attention to the courtroom as the ageless Professor Hetland approached the lectern to address the court. And then it became clear that that day in class years earlier was not the "end" of the story. And then it happened. It was so . . . so involuntary. My heart began racing and my palms were sweating. I stammered out some questions, but he handled them like Rod Laver returning an easy serve. Nothing had changed. I still didn’t know what the hell he was talking about. But later, as I reviewed my notes on Professor Hetland's argument, I understood the issues -- I think. Professor Hetland won.

Memories are Made of This-Part II

2007-04-25T15:39:00.000-07:00

We explored memory’s fallibility in my last column (D.J. January 16th 2007), remember? We learned that memory carries with it awesome responsibility. It can uplift one to heights of ecstasy, but its destructive force can plunge one into the abyss. It can destroy reputations, opportunities, even life itself. DNA evidence has proven memory wrong. Yet, however faulty and confused, memory often asserts its claim with certainty and arrogance. Judges take note.

In my last column we pondered how to resolve the clash of memories concerning whether it was the pianist Sviatoslav Richter or Glenn Gould who dismantled the Steinway at the beginning of a concert at the Harmon Gym on Cal’s campus in Berkeley in the early 1960’s. In this column we marshal the evidence that ineluctably leads us to the answer.

As you recall, my friend, who I called D to protect her privacy, and I attended a piano recital at the Harmon gym in 1960 or 1961 (as I shall explain we now know it was 1960),where the demolition occurred. Our respective memories agree on that.

Incidentally, D, who upon reading my last column informed me that the childish use of the letter “D,” her nickname, to protect her privacy, which needed no protection in this matter, was unnecessary. Apparently she is not a Franz Kafka fan. So in this column I shall refer to her as Deena, her name, but with no assurance that she might have preferred I stick with “D.”

Deena acknowledged that I accurately described the details of the manner in which the destruction took place. Up to this point our memories are in, please forgive me, perfect harmony. It is to the question, “Which pianist savaged the Steinway?” that Deena’s memory and mine take divergent paths, and that could make all the difference. One memory leads to a faithful recreation of the past; the other to an imagined reality existing only in neurons, synapses and memory cells on sabbatical. Deena says the pianist was Gould, “you know how eccentric he is.” I say it was Richter, no buttressing argument necessary; that is what I remember.

We spend two columns on this quirky event because the underlying issues involve the lifeblood of our justice system, memory. This is something of far greater consequence than Maurice Chevalier and Hermione Gingold singing "I Remember It Well" from the musical Gigi. Trials attempt to recreate events of the past based to a large degree on memory. Pity the poor litigants, the facts of whose cases depend primarily on memory. If Deena and I were the only witnesses in a trial to determine which pianist desecrated the Steinway, how would the trier of fact judge our credibility? We are both sincere and certain.

At the conclusion of this column I will render my decision on who was the unruly pianist. In the ensuing discussion I reveal a rare glimpse into a judge’s decision making process so that attorneys, litigants, and the public will appreciate the effort and care judges take in reaching the “right” decision. Some might protest that it is unseemly for me to render a decision in a case in which I am a witness, that the decision will be tainted, uncitable, and subject to ridicule. I will not argue the point. I only ask that you consider the facts that I faithfully relate with scrupulous accuracy and decide whether the decision is correct. If the Supreme Court reverses on a technicality, or even worse depublishes it, we still will know what happened.

In my last column I tried to resolve this conundrum for the trier of fact in a plea for help. The person or persons who provided information leading to resolution of the dispute would receive honorable mention in this column and I would make a contribution to legal aid. I received numerous e-mails from a variety of people who were not shy about sharing their views even though most had not been at either concert. A piano dealer said it had to be Gould because the act would be consistent with his personality. Many others agreed with this assessment.

You might also recall that in my previous column, I said I was speaking one evening with some friends about the incident, and Joan Booke chimed that she had attended the concert and remembers quite clearly who the pianist was. I withheld disclosing what Joan said because I did not want to influence anyone who might contact me with the information I sought. Now I will reveal what Joan Booke said, “It was Richter.” She remembered the event quite clearly and she also remembered that she had not attended the Gould concert.

I sent my column to Deena, and she called me to assert once again that I was wrong about the concert. I told her of Joan Booke’s recollection and Deena reminded me that I, a judge, should realize that witnesses’ memories are often faulty. I suggested that this insight also applied to her. I acknowledged that recollection is often flawed, but that Joan was an independent witness who had not been coached. Moreover, she had no interest in the outcome of the dispute and gently chided me for pursuing the issue. “Why not just let Deena believe she is right, and leave it at that? Is it so important for you to be right?” I told Joan that however self-serving it may sound, my goal was not to be “right,” though it would be a comfort to know my memory was grounded in fact rather than imagination. I was in pursuit of the truth and a decision on the merits.

Another wrinkle in this case is that Deena is relatively certain she did not attend the Richter concert. And Joan is certain that she did not attend the Gould concert. And I am certain I attended both concerts, and absolutely certain that Deena and I had attended the Richter concert together, and moderately certain we had also gone together to the Gould concert.

It is also noteworthy that Deena and I remember exactly what occurred during each of the three episodes when various parts of the piano were removed, and the audience’s reactions. She even remembers her remark to me that the piano will be in shambles by the end of the concert.

As the weeks passed after publication of my column more people came forward with the fruits of their research. Joan’s husband, my good friend, arbitrator Frederick Booke, informed me that the concert took place at the Harmon Gym on November 13, 1960, at the end of Richter’s American tour that began in the New York earlier in the year. Last month I appeared on a CEB panel on Evidence. At the end of the program a lawyer came up to speak to me, not about hearsay, but to inform me that her research revealed that 1960 was the year that Glenn Gould stopped giving concerts. Yes, I was not sure whether the concert had occurred in 1961 or 1960. As you shall see that small uncertainty is of no moment. Music critic and writer Gene Lees told me that he knew Gould quite well in Canada, and opined that however eccentric Gould was, he would never tear apart a piano. Lees said that Gould was not a violent person and would not commit an act of violence even against an inanimate object, particularly a piano.

But then a breakthrough occurred when I recently received an e-mail from Law Professor Paul McKaskle. He was dean for many years at University of San Francisco Law School where he still teaches a variety of courses. This includes Evidence, which he taught as a visiting professor at Boalt Hall. Now he ought to know what he is talking about.

He and his wife Ellen attended the Glenn Gould concert at the Harmon gym in 1960. But in 1960 they were not married and did not know each other. They independently remember that Gould, “full of peculiarities,” did not lay hands on the Steinway other than to touch its keys. This compelling evidence brings the case to a close. With publication of this column I will send my check in the amount of $200 in honor of Professor Paul McKaskle and his lovely wife to Public Counsel, the law firm in Los Angeles that renders pro bono legal services to the poor.

Deena called me again to see how my research was coming and I told her that I thought the evidence produced by Joan Booke, and Professor McKaskle and his wife compelled a ruling in my favor. Deena graciously agreed. She found it puzzling, however, if not disturbing, that she could be wrong about something she remembers so vividly. That approximates how I would have felt had the evidence pointed to Gould. Indeed, such a revelation can engender acute distress. If parts of our past are the product of imagination, then that can call into question who we think we are in the present.

I am convinced beyond a reasonable doubt that my decision is correct, but the outcome of this case gives me no satisfaction, other than a momentary sigh of relief. Deena’s acknowledgement that her memory had apparently failed her gave me a pang of regret. Would it have been just as well for Deena to believe as she did without my meddling? No, I know Deena, and I am convinced that she, like me, believes the pursuit of the truth is more important than being right.

And that is what judges must do all the time. They must make reasoned decisions even when they are not pleased with the outcome. All we can do is get as close to the truth as possible, and decide whether a party has met his or her burden of proof. And I am not convinced of the correctness of my opinion beyond all doubt. I am not convinced of anything beyond all doubt, including my existence. But if some additional evidence should reveal that it was not Richter after all who violated the Steinway, you can trust me to reverse myself.

Memories Are Made Of This

2007-01-27T15:04:00.000-08:00

Before entering law school I asked a seasoned lawyer who was a family friend for advice about how to succeed in law school. “Sharpen your memory,” he advised. “It’s all about memory.” True, that, and as far as I can remember, a few other things. That was forty-seven years ago. I thought that with over four decades of practice I would have the memory thing down. I'm not so sure. At a bar function a lawyer will come up and talk about a case he or she argued in front of me, God knows when. He or she will either apologize for a gaffe, or boast about a win, and I don’t have the foggiest recollection of the case or the lawyer. I can usually get by with a smile and a nod.
When caught in a memory lapse, I usually rely on a dictum of the late Judge Jerry Pacht. “For every case name or statute I remember, I forget a line of poetry.” That usually blunts criticism of my forgetfulness.
But however one’s memory may lapse or play tricks, there are certain events in one's past that are permanently etched in one's brain. I remember vividly Dean Prosser decapitating a student sitting next to me in my torts class. Prosser’s words encased in a trick question (they were all trick questions), flew threw the air like razor sharp blades, followed by others in succession that cleanly sliced through the student’s neck so that his head teetered, then dropped silently in his lap. At the end of the class I remember him carrying his head under his arm. I leaned down and asked him how it felt. “Don’t ask,” he said. By the end of the semester he had learned to answer Prosser's questions correctly and with alacrity. I recall the Dean commenting that the student had finally screwed his head back on.
And I have vivid memories of my jury duty stint some thirteen years ago which inspired my Daily Journal column entitled, "We Will Thank and Excuse Juror No. 4" (Daily Journal March 9, 1994). That was an experience hard to forget when you are Juror No. 4. An article in the Daily Journal October 23, 2006, about lawyer Tom Rubin, who also does stand-up comedy, reminded me that Tom and I met during that time when he was also on jury duty. Tom witnessed my down cast mien as I ignominiously shuffled out of the jury box. He cracked some jokes about it, which I bet he uses in his act. I think I can be excused for not remembering the punch lines.
The foregoing incidents I remember with crystal clarity, but lately my self-confidence is shaken. Because of two recent incidents I feel like the protagonist in the movie, Memento. This has caused me to question how reliable are witnesses' memories when relating past events.
About ten years ago our traveling judge educator and good will ambassador, Los Angeles Superior Court Judge Judy Chirlin, and I taught a week-long course to Serbian Judges at a judicial institute in Prague. At a cocktail reception the Czech government gave in our honor, I met an elegant lady from one of the cultural ministries. We spent some time conversing about her work, her children and her husband also worked in government.
Several years later, I attended a concert featuring the Schulhoff String Quartet from Prague in which my close friend’s son in law, Jonas Krejci, played the cello. Who was sitting next to me?--the lady from the cultural ministry I met years earlier- - or so I thought. She was charming and elegant, just as she had been when we met in Prague. I recalled our meeting but she asserted with certainty, tempered by tact, that we had never met. She protested that she was not in Prague when I was there. "We couldn’t have met," she said, and gently squeezing my arm insisted that if we had met she would definitely have remembered me. That little white lie did nothing to ease my apprehension. Was I losing my mind? I remember her so distinctly and yet she insisted we never met. Our faces were locked in mutual smiles, only mine was through clenched teeth. My friends who witnessed the exchange were also smiling. How could I explain this was no smiling matter?
It was so frustrating. There we were, two people with different memories of something that did or did not happen, and there was no one to help resolve the issue. I suddenly knew how frustrating it must be to a witness facing a skeptical fact finder in a trial. Here I was, a witness with a story contradicted by another witness. Yet, I believe my friends who heard the exchange between us found me sincere, but not credible.
Another incident came up a few months ago which left me in a similar quandary. I write about it in the hope that some reader of this column may shed light on the facts which I now relate. Interestingly enough, the event like the preceding one, involves music.
Let’s go back to law school in Berkeley where I was honing my memory skills. The year was 1960, maybe 1961. Please dear reader, do not draw hasty inferences. The exact year is not necessary to the story. At various times during that period, one of three wonderful pianists of the 20th Century each gave concerts at the Harmon gym. The first was Rudolph Serkin. A friend of mine, Adrian Ruiz, had studied with him at the Curtis Institute. To impress my date, I had the temerity to take her back stage at intermission to meet Serkin. I gained entry by stating I had a message from Adrian Ruiz who in fact I had not seen for a few years. Serkin graciously ushered us into his makeshift dressing room and warmly shook my hand. I told him Adrian sends his regards and he thanked me for stopping by. I don’t remember my date’s name and Rudolph Serkin passed on years ago, passing the mantle to his immensely talented son Peter. I have no way of proving the back stage meeting occurred, but under most circumstances I would not have to. Most people would be inclined to accept the truth of this unremarkable story.
But the two other concerts left me wondering about a noteworthy incident that occurred at one of those concerts. The pianists were Sviatoslav Richter and Glenn Gould. I attended the two concerts with a dear friend, let's call her Dee. We have recently renewed our acquaintance and in reminiscing about the past, we have similar recollections about what happened at one of those concerts. We disagree, however, at which concert the incident occurred.
This is what happened. The pianist strode onto to the stage, held his tails behind him as he sat down at the piano bench. He contemplated the keys for a few seconds and then threw himself into a Haydn Piano Sonata. After about 10 seconds he abruptly stopped and began inspecting parts of the Steinway. The audience was silent. Not a sound could be heard other than the creak of the piano bench as the pianist shifted his weight and looked intently at the piano, for what? the source of a vibration? a squeak? Suddenly he tore from the piano a strip of wood just below the keyboard that ran the length of the keyboard. He dropped the board which hit the floor with a clatter. Not a peep from the audience. He began playing the Haydn piece again. After a few seconds he stopped and renewed his search. This time he stood up and peered into the area of the sounding board. His tails were draped over the piano bench, his tall frame bent at a 45 degree angle from his waist so that he looked like a praying mantis. He found something in the interior of the piano which he flung across the stage. A sound like an active beehive buzzed throughout the gym.
For the third time the pianist again began the Haydn piece. And again he stopped after 3 or 4 seconds. This time he slid the music stand off the top of the piano and threw the unwieldy thing which hit the floor with a jarring bang. I, along with the audience, broke into spontaneous applause. Some cheered. I was in whole hearted agreement with Dee who suggested that demolishing the piano could seriously hamper completion of the concert. But the remainder of the concert went on without incident and the pianist received a 10 minute standing ovation at the conclusion of his encore.
So which pianist tore the instrument apart? In my mind there is no question. It was Richter. Dee insists it was Gould. She appears to rely on logic to support her point. "You know how eccentric Gould is," she said with a tone of admonishment. She is right that Gould is eccentric. In fact during his concert, he sang loudly while playing and conducted himself whenever he had a free hand. But I clearly remember that, unlike Richter, he had the music in front of him. It was pasted on large pieces of cardboard stacked on the music stand. He dropped each piece of cardboard noiselessly on the floor as the concert progressed. I reminded Dee that it could not be Gould, because Richter had thrown the music stand on the floor. She found my point unconvincing.
I approach this dispute like I would a case. Of course I would like to be right, but I am more interested in getting the right answer. That is the responsibility of any good judge. Dee said I would be hard pressed to prove which one of us was right. I tried the internet and old newspaper reviews and had no success. But a few weeks ago I was relating the story to a friend, Joan Booke, and she reminded me that she had attended Berkeley in the 60's and was present at the concert where the piano was torn apart. She remembered exactly what happened, because as she pointed out, one does not forget such a unique experience. Could she be mistaken about which of the two pianists abused the Steinway? It is unlikely because she attended only one of the two concerts. I will tell you which concert Joan attended, but I must withhold that information for another column.
Although I take comfort in getting close to the truth, I yearn for something even closer than a near certainty. I would like some corroboration. If anyone reading this column has attended one of those concerts of which I speak, and can provide information leading to the identity of the irate pianist, please contact me at your earliest convenience. He or she will receive honorable mention in a future column, and I will make a contribution to legal aid.
There is comfort in getting close to the truth, what we strive for in our trials. In the meantime, I have been relaxing and listening to Dick Hyman's rendition of a wonderful song by the late Eubie Blake. It's called "Memories of You."

Education for Judges- A Flu Shot

2006-12-21T15:49:00.000-08:00

Yesterday I got a flu shot. No one made me get it. I did it on my own. Of course I could still get the flu. If so, I can take some comfort that at least I had tried to prevent it, and could rationalize that without the shot, my flu might have been more severe. But what if I did not get the flu shot and got the flu? I would have this demeaning discussion with myself. Despite my weakened condition I would be the object of derision and scorn heaped upon me by myself. It is not pleasant to call yourself an idiot. (For the benefit of the Daily Journal's refined readership I have omitted the adjectives that precede the word "idiot.") While in bed, shivering with chills, trying to swallow with a sore throat, I would have looked back months earlier and agreed that a mandatory flu shot would have avoided all of this.

But does that mean that mandatory flu shots are preferable? The subtle change in the hypo would not change my view because I had the benefit of hindsight. It is likely, though not a certainty, that I would have avoided the flu with a mandatory flu shot. I might not be so sanguine about a mandatory flu shot, however, when it is administered without the benefit of a glimpse into the future. The word "mandatory" does not sit well with most people. This includes judges. Now there's irony for you. Judges, like me for example, who make mandatory pronouncements daily that make people go to jail or pay money, or do something, or stop doing something, bristle when on the receiving end of "mandatory."

But wait a second. The doctor who is treating me for the flu attends mandatory continuing education programs. If my doctor did not take these programs or even voiced a strenuous objection to taking them, I would seek medical advice elsewhere. Most people profess to take the notion of education seriously, even high school drop outs. The insight usually occurs later in life. Education is mandatory for kids, and for an array of professionals including lawyers, doctors, accountants, veterinarians, mortgage and real estate brokers, to name a few.

So should mandatory education be required for judges? On October 20, the Judicial Council will consider recommended proposed Rules of Court that would require minimum education requirements for trial judges, 30 hours over three years. The devil may be in the details, but the rules can be modified and tweaked to satisfy a broad range of educational needs. But what of the concept itself? Judges on the trial and appellate level have voiced passionate concern over the issue, offering arguments for and against. The California Judges Association (CJA) through its Executive Board has expressed the firm belief that education is a "core duty of every bench officer," but is opposed to mandatory education.

California has rightfully earned a stellar reputation for having the most advanced and comprehensive judicial educational program in the world. Educational programs put on by CJA and the Center for Education and Research (CJER) draw record attendance. I have attended and taught at many of these programs and come away enlightened and renewed in my enthusiasm for my work.

With such high attendance and support for education from the vast majority of California judges, why are some so against mandatory as opposed to voluntary education? One primary concern is that mandatory education threatens judicial independence. But does it? The rules for mandatory education are promulgated by judges and will be implemented by judges. Judges have no say over what they can wear on the bench, but I hear no complaints that this undermines judicial independence.

Section 68110 of the Government Code requires judges at their own expense to procure a judicial robe which they shall wear when presiding over cases in open court. What's more, the Judicial Council prescribes the style of the robes. Rules of Court, rule 299 requires that the robe be black and extend in front and back from the collar and shoulders to below the knees, and have sleeves to the wrists. Moreover, the robe must conform to the style customarily worn in courts in the United States. Want to wear a short sleeved navy blue robe when the letters J-U-S-T-I-C-E on the front? A judge can do so at the dinner table, but not on the bench.

And what do we mean by judicial independence? In fact, we are dependent, and ironically, our independence depends upon it. We are dependent on the public we serve. I am not speaking about the unhealthy co-dependent relationships that psychologists speak of. Nor do I speak of the inappropriate dependence that would be reflected in judicial decisions that take into account the mood of the moment. This instead is a healthy relationship where judges take into account the public trust necessary to a free and independent judiciary.

True, candidates for judicial office undergo a rigorous examination concerning their suitability for this important office. The dedicated Commission on Judicial Nominees Evaluation (JNE) conducts an exhaustive investigation free from the influence of the appointing authority. But after a judge takes office the public can reasonably expect the judge to meet more than the minimum standards of competence and knowledge of legal principles. There is also the legitimate expectation that judges be cognizant of the diverse cultural mores of our communities and be aware of how the administration of justice is perceived by the public. Indeed, the commitment to mandatory education from the judiciary itself tells the public that judges take their awesome responsibility seriously.

It is true, that courts are constantly engaged in a process of education through the very act of judging. But educational programs give judges not only a comprehensive view of substantive law, but expose them to different methods of judging and help them become aware of how new technology and values in a rapidly changing world affect the administration of justice. Moreover, the excellence of the judicial programs now planned and taught by dedicated judges would in no way be diminished if the programs were mandatory. Forty-two states require judges to have mandatory education. Why not California?

Many judges in favor of mandatory education point out the "political downside" to rejecting such a proposal. We should not tell the voters that the rules that apply to other professions simply do not apply to judges. Should we appear as the stern Judge Angelo did to Isabella in Shakespeare’s Measure for Measure, Act 2, scene 2, “ . . . man, proud man, (and woman) Dressed in a little brief authority, Most ignorant of what he is most assured?” Should we hand this responsibility over to the legislature?

Some of my colleagues from the First Appellate District have endorsed judicial education for trial and appellate justices. They have remarked that “supplemental education programs administered by the judicial branch will affirm California’s commitment to judicial excellence and will enhance public confidence in the courts.”

The Judicial Council will vote on the proposal for mandatory education on October 20. We should avoid unpleasant consequences in the future. A mandatory flu shot can be a good thing.

Going to the Dogs

2006-12-21T15:46:00.000-08:00

Dog- gone it, ( a euphemism for what I'm thinking.) To stay with the metaphor, I am dogged by complaints of people I know unleashing on me their dissatisfaction with perceived misdeeds of the judiciary. Not my misdeeds, mind you but those of others. They are barking up the wrong tree. Is every law abiding ethical CEO responsible for the Enron scandal? Is any judge responsible for the decisions of other judges? How, I ask you can I be held accountable for the occasional miscreant who appears on the scene?

Case in point. People are still complaining to me about the "judge" who several weeks ago, ordered a victim of spousal abuse seeking a restraining order to leave his court or risk arrest and deportation. Well, first of all, he was not a sitting judge. He was a Pro Temp, an attorney volunteering his time to "help out " the Los Angeles Superior Court with its caseload. It appears he didn't help the court, the victim or enhance the public's perception of how the court dispenses justice. But the Los Angeles Superior Court acted with alacrity. It figuratively ordered him to leave the courtroom, or more specifically, it removed him from the list of pro temp judges. The victim who the judge pro temp ordered to leave the courthouse, ultimately had her day in court and another judge granted her request for a restraining order. So a mistake was rectified and justice done. And I hope the public understands that this one isolated incident is not a reflection on the dedicated attorney volunteers who offer their expertise and devote their time to help the court.

Glad to get that off my chest. But on second thought I know about this incident only because I read about it. Judges are supposed to hear all sides of the story before making a decision and here I am making a judgment without hearing the pro temp's side of the story. True, he used bad judgment but could his motivation have been benign? He is reported to have mistakenly believed that he was helping the victim by alerting her to the possibility of arrest.

So why have I considered the sliver of a possibility that the ex judge pro temp may have had a plausible explanation for his actions? I think it is because judges of all stripes often take it on the chin for their misunderstood rulings. I remember back some thirty years ago, when I was a municipal court judge. Despite the awesome power we judges wielded in deciding misdemeanors, one thing struck terror in our hearts, the Appellate Department of the Superior Court.

Its presiding Judge, now a distinguished Judge on the 9th Circuit Judge Arthur Alarcon reminded us that for all intents and purposes the appellate department was our supreme court. That alone was enough to scare the daylights out of us. At this time before word processors were in use in the court system I thought the opinions were prepared and mimeographed by the typing class at Le Conte Jr. High School. "The left turn was safe. Reversed."

I recall the time a Commissioner's finding of guilt on a traffic infraction was reversed by the appellate department. The appeal by a pro per defendant stated adequate grounds for reversal. The defendant also alleged that the Commissioner made numerous inappropriate comments during the trial. The appellate department's opinion stated that if the allegations were true, the commissioner's conduct was unacceptable. But the alleged conduct had not been proved, much less shown any where in the record. I knew this commissioner and it was inconceivable to me that he could be guilty of these allegations.

This is just another indication that a judge's judicial life is not a bed of roses. Even judges who have passed away are not free from criticism. The famous Judge Charles Fricke who died in 1958 is still taking heat for the trial he conducted in the famous Sleepy Lagoon case in 1942 on which the musical Zoot Suit is based. People v. Zammora, 66 Cal.App.2nd, (1966). The Los Angeles Times recently devoted an article to him. Aug. 20th 2006. My friend Alice McGrath who assisted the defendants and their counsel during the trial argues that the manner in which Fricke tried the case reflected bias. Enter again my colleague Judge Alarcon who had tried numerous cases before Fricke, and read the trial transcript. He disagreed with this assessment, and points out that the reversal by the Court of Appeal was not based on bias or racism but error in the admission of evidence. The appellate court found the evidence insufficient to show defendants conspired to commit murder. Ibid at pg.201-202. The appellate court also chastised Judge Fricke for disparaging remarks he made about defense counsel in the jury's presence. Ibid at pg. 215.

Interestingly Judge Fricke's name appears in an article in the Spring/Summer 2005 newsletter of the California Supreme Court's Historical Society. The engrossing article by Kathleen Cairns is about the conviction in 1935 of Nellie May Madison for the murder of her husband. But for a commutation of her sentence by then Governor Merriam she would have been the first woman to receive the death penalty in California. Judge Fricke was the trial court judge and actually testified for the prosecution. The Supreme court in People v. Madison, 3 Cal.2d 671 (1935) approved of Fricke's conduct. It was proper for him to testify for the prosecution about a witness's statements about the interval between shots because that testimony "did not appear in the record and the trial court timed it." At page 679. Lest we be too quick to condemn Fricke, Ms. Cairns points out that the decision tells us much "about judicial attitudes and procedures in the 1930s."

But trial judges can be reversed, and on occasion chided by some uppity court of appeal. Even a graciously written reversal can be devastating to any judge. Recently I was reversed by the California Supreme Court. I was more shocked than upset. When I received the Supreme Court opinion, I said aloud to no one in particular, “Dog gone-it. How could seven intelligent people all be wrong?”

Just as I was about to howl about my sentiments, I thought back to what I had just said aloud. “Dog gone-it.” Of course that was it. What every misunderstood judge should have. A dog. Dogs don’t care about reversals or even affirmances. They are there for you no matter what. Their love is unconditional. For cat lovers, a weakness to which some including this writer have succumbed, it is your unconditional love for the cat that is mandatory. Ask any cat.

But dogs. They are good for judges because they don’t judge. A dog’s tail will wag for a judge that has been censured by the judicial performance commission. Well that may depend on the breed. I am talking about dogs and judges.

But judges can carry their relationship with dogs too far. Take, for example, Judge Noel Canon. See Cannon v. Commission on Judicial Qualifications. 14 Cal.3d 678. She was removed from the bench for some bizarre behavior, including having her dog sit in her lap while she conducted trials from the bench. Some of the dog’s rulings reflected unfamiliarity if not disdain for the Evidence Code.

When she was removed from the bench, Judge Canon's dog, (I think it was a high strung Chihuahua), is reputed to have made commercials to supplement her mistress’s income until a highly publicized dispute with Actor’s Equity ended that. But it does show a dog's devotion.

But I wonder if all breeds of dog show such loyalty to their owners. I have no question about Sergeant Preston and his Husky King. But do you think a Pomeranian would display the loyalty of Judge Canon’s Chihuahua? I mention this because of an ad I saw in the Los Angeles Times.

In thick bold white letters against a blue background, appear the words, “Pomeranian.” Beneath the letters is a photo of an orange Pomeranian sculpture, "actual size 8 3/4 in height. Yours for only $59.60. Allow 4 to 6 weeks for shipping after initial payment."

The ad pitchs the “meticulously crafted figurines” as if they were real dogs. It rhapsodizes about a Pomeranian’s “intelligent eyes” and “friendly expression.” It speaks about how this breed is “outgoing and friendly” and “always ready to play.” The ad then urges you to buy a “figurine” to bring the “irresistible charm of this beloved breed into your home.”

You can also get a black one if the orange one doesn’t appeal to you, or maybe get both. Or maybe get two of a kind. That way one won’t get lonely. The photograph of the head of the black Pomeranian is creepy. It looks a bit like a vampire bat. I haven’t seen all that many Pomeranians, but I am sure I never saw a black one. There are black labs, black poodles, black cockers, but are there really black Pomeranians? But I’m getting off track.

The ad raises some questions. Has any one seen a Pomeranian lately? Haven't seen any in my neighborhood. Maybe people are embarrassed to be seen with them. Would a misunderstood judge be cheered at the end of the day by a yapping, I mean barking Pomeranian? . I don't know but if the judge pro temp who ordered the victim out of his courtroom does not have a dog, I would be willing to send him a Pomeranian figurine.

Governor Does the Right Thing

2006-12-21T15:43:00.000-08:00

Hooray for Governor Schwarzenegger!. Did I just say that, me, a Democrat? I voted for Gray Davis three times for Governor. And yet the first sentence of my column is a commendation for Governor Schwarzenegger. But what does my praise have to do with my party affiliation? Absolutely nothing. Maybe that is because sincere and well deserved praise, and criticism too, should stand on its own irrespective of party affiliation or other extraneous considerations.

Lest the preceding sentence introduce too sanctimonious a tone, let’s get back to Governor Schwarzenegger later. I guess you know where this is leading. It’s about that troubling judicial election last month.

No doubt you have heard and read quite enough about the election of Lynn Olson to the Los Angeles Superior Court. Editorials, articles, opinion pieces, and letters to the editors have exhaustively dissected this “upset” election ad nauseam. So why am I writing about the same thing a month later? See, I was out of town when the election results were posted in the Daily Journal. When I learned the results upon my return, I was numb. It was the same feeling I had when Judge Alfred Gitleson was defeated in a judicial election in 1970, the year that marked the end of clear election sailing for judges. His opponent had been rated "unqualified" by the Los Angeles County Bar Association.

I had to wait for the numbness to wear off this time before I could process the news that Ms. Olson had defeated Judge Janavs. Then I was overcome with guilt. You see I heartily, enthusiastically endorsed Judge Dzintra Janavs. This was an unsolicited offer. I endorsed her because along with countless others, I know her to be a judge of exceptional ability. My motives were partly selfish. She brings distinction and excellence to the bench. Judges of her caliber enhance the judiciary. Months ago I was at a legal function where I found Judge Janvas standing near me at the table of munchies. We chatted and I said while nibbling a carrot stick, “By the way I would be glad, in fact honored to endorse you-- if you don’t think it would be a liability.” A little joke there at the coda. I think she understood me. She graciously laughed, and thanked me for the endorsement. Perhaps this sounds ego-centric, but maybe there was some truth in my feeble humor. You don’t think my endorsement contributed to the result do you? Hello! I didn’t hear your answer.

Whatever my contribution, I have had time to reflect on this terrible outcome. I have heard the accusations against Ms. Olson and her responses, and read the many editorials, articles, and letters to the editors concerning this disturbing election. And having a few weeks to mull things over, I offer a few observations. My motivations are selfish because I want to divert attention away from my being a possible cause of this election gone awry.

So let’s get back to what I was saying earlier about Governor Schwarzenegger. What was it? Oh yes, I was praising him and I might have said something about my being a Democrat. That just sort of slipped out. Oh, now I remember. I said something about praise or criticism should have nothing to do with party affiliation. Is this point of view a reflection of naivety or my profession? A politician’s party affiliation is usually pertinent and relevant to the voters, but a judge’s party affiliation is not relevant.

“Not relevant to what?” a nameless person who is a composite of the general public asked me.

“Not relevant in the mix of criteria you use to evaluate a judge’s performance. What is that you are muttering?”

“Give me a break.”

“Nice colloquialism. Go ahead. Take a 'break' to elaborate."

“Thanks, dude. But don’t tell me party affiliation is not relevant in the decision to appoint judges.”

”Yes, often it is, but not always. But once the Republican, Democrat, Independent, Wobbly, whoever takes the oath of office, then party affiliation is not relevant.”

“Now we are back to square one. Not relevant to what?”

“To the decisions and rulings the judge makes.”

“We the composite public just don’t buy into that. And you, Judge, just admitted to being a Democrat.”

“Yes, but only to illustrate that my party affiliation has nothing to do with my praise of the Governor in this instance. In United Sates v. Nixon, 418 U.S. 683 (1974), for example, president Nixon's appointees to the United States Supreme Court ordered him to produce certain tape recordings and documents during the Watergate investigation.

“You sure they were Republicans?”

“Please.”

“O.K. but that was an exception.”

“No it isn’t. Most judges make every effort to put aside their personal beliefs and prejudices and decide cases on the merits, the facts and the law, and not their preferences.”

“Even if I accept your shaky proposition, if judges had their party affiliation listed on the ballot, I would vote for the ones that belong to my party.”

“And what is your party?”

“Judge, if you would pay attention, you would remember that I am a composite, a number of parties, and points of view rolled into one.”

“So a part of you voted for Lynn Diane Olson, the non practicing attorney who makes bagels instead of legal arguments, the candidate who the Los Angeles County Bar Association rated ‘unqualified’ to sit on the bench.”

“Most of me did. And by the way, to bring up bagels is a cheap shot and detracts from the objectivity of this interview.”

“I suppose you're right. Sorry. But how could ‘most of you’ vote for someone who is not qualified?”

“Most of me didn’t even know what her rating was.”

“The judge she defeated, Judge Dzintra Janavs, was rated “exceptionally well qualified” by the County Bar Assoc. She is one of the most able, conscientious and well respected judges to sit on the Los Angeles Superior Court.”

“Most of me didn’t know that either.”

“Did you know that Judge Janavs is a Republican?”

“Yes, that’s why a large part of me voted for Olson.”

“You irritate me no end.”

“Got something against Democracy?”

I didn’t ask any more questions. This was about one of the most exasperating interviews I have ever conducted. Sure democracy is not all that tidy and people get to vote however they wish and for the most arbitrary reasons. But it is perfectly legitimate to ask and question how this election turned out the way it did. In the Crawford case, Judge Gitleson decided that the law compelled him to order the school board to adopt a desegregation plan for the school district in Los Angeles. He lost the election, not because he was a bad judge, but in fact because he was a good judge. His party affiliation had nothing to do with his decision.

Why did Judge Janavs, another good judge lose the election? Ms. Olson, a Democrat, has been reported to say that she chose to run against Janavs because Janavs is a Republican, and not because of Janavs' foreign sounding name. That may be so, but there is still a triable issue of fact about how and why this election was won by Ms. Olson. Ms. Olson may be a Democrat, but her party affiliation tells us nothing about her qualifications to be a judge. Campaigns, however, can give us insight into character, integrity and values, important qualities we look for in judges and office holders.

I acknowledge that some lawyers voted against Judge Janavs because they disliked her rulings in rent control cases. I cannot speak to the legitimacy of their criticism, but should that be the basis to vote for an unqualified candidate who has never made a judicial ruling in her life? Time will tell what caliber of judge Ms. Olsen will be.

But the wrong that this election created can and will be corrected. Governor Schwarzenegger plans to re-appoint Judge Janavs to the Los Angeles Superior Court. An editorial in the Los Angeles Times last month, chalked up the defeat of Judge Janavs to “politics” and mildly rebuked the Governor for re-appointing Judge Janavs. The Times complained that we cannot pretend to respect the voters when we overturn their decisions. Nonsense. The voters got the candidate they apparently wanted. The voters also elected the governor who has the power to appoint judges. Here, the governor acted in the public interest. He insured the high quality of the Los Angeles Superior Court by keeping Dzintra Janavs, one of its most able and conscientious judges on the court. That’s good politics. And that’s democracy.

A Catty Legal Problem

2006-12-21T15:38:00.000-08:00

Ask lawyers and their clients this question: Judges know the law-true or false? Their answer depends upon whether they won or lost their last case. I’m not even sure what it means to “know the law.” In fact, judges often rely on lawyers to educate them about the application of law to the facts of a particular case and hope to discern when they are mis-educated.

But many people think that judges are presumed “to know the law.” If judges knew the law so well, why do they ask so many questions? “Counsel, would not collateral estoppel apply here?” More often than not this isn’t a mere rhetorical device to stimulate discussion. But have you ever heard a judge outside of the courtroom admitting he doesn’t know the answer to a question, legal or otherwise? Has anyone ever heard a judge ask a lawyer at a bar function to explain what is a retraxit?

By now dear reader you may have guessed that I am leading up to something. I have a legal problem and I don’t know my rights. It is easier to make this admission to you, anonymous reader, than to a person standing before me whose stifled laughter I would notice.

My legal problem can be summed up in one word-CAT, not a tractor or Computerized Axial Tomography, mind you. They at least do some good and they don’t scratch furniture. O.K. I am a little upset. So just pretend I am a client sitting across the desk from you. If you are not a lawyer, pretend anyway. If I include facts that are not pertinent, please bear with me. Remember, I am a client.

So here is what happened. We had this cat, Boz. He showed up at the Court of Appeal, a mere kitten, about 16 years ago. So I took him home and he has been with my wife Barbara and me ever since, that is, until he died about a year ago. He was ill, but we made the last several months of his life comfortable. For example, we held off remodeling our house until he passed on. I don’t have to tell you how much construction costs increased when we finally began the project.

After the passage of an appropriate time, we had planned to get another cat to fill the void in our lives left by Boz. If a spouse dies, you don’t just go out and get married the next month. But cats are animals, selfish ones at that, and the appropriate grieving period is much shorter than it is for humans. Twenty-four hours is a little tight. So we thought we would wait a week or so.

There must be something in our karma, or maybe it has to do with our astrological signs, or maybe the word goes out in the feline community when there is a vacancy at the Gilbert residence. It never fails: cats always show up on our door step just at the time we are contemplating getting one. I don’t even know what it means to buy a cat. Do people actually buy cats? I wouldn’t be caught dead with an expensive Persian wearing an emerald collar around his neck.

Anyway, as ironic as it seems, a lovely elderly lady who lived up the street died around the same time as Boz. She didn’t exactly have a cat, but one lived on her roof for about a year. Her caretaker fed the cat, not on the roof of course. The cat came down to get her meals. During the week they wouldn’t let the cat in the house because the caretaker was allergic to cats. But on the weekend the lady’s daughter drove up from San Diego to relieve the caretaker who was off Saturday and Sunday. The daughter would let the cat in. I bet that caused havoc with the caretaker when she came back on Monday. But that is neither here nor there.

So when the mother died the daughter was panicked about what to do with the cat. She wanted to take the cat with her to San Diego, but thought it would be too traumatic, either for her or the cat, I'm not sure which. The daughter begged us to take the cat. She told us that when the cat first showed up it had a collar and a tag with a phone number. When she called, the kid at the other end of the line said they didn’t have a cat and hung up. So doesn’t that mean it was O.K. for us to take the cat?

I brought the cat over to our house. She, yes, this was a she. We always had males. I can tell you without hesitation male cats are much better tempered than females. I carried her and she actually growled. I bet she thought she was a dog. So I held her tight and brought her into the house. She checked the place out and knew immediately she had a good deal, food, lodging, toys and a medical plan. She purred and meowed and decided right then and there to stay. Simple as that. Barbara even gave her a name. Opus or Oh Puss. Get it?

Opus was temperamental as all get out. But she took to Barbara right away. You would think they were sisters or something. They hung out together all the time, carrying on with their private conversations, snuggling in bed. Most of the time Opus didn’t have much use for me, except when she was hungry. I get up earlier than Barbara, and Opus would follow me downstairs for breakfast. That made no sense because we had dry food in her dish at all times. She would look at me and meow for food that was already in her dish. I don’t know if this cat was a moron or just liked seeing me do things for her. I didn’t even have to put new food in her dish. I just stirred the food around a little and then she would chow down. Go figure.

We bought her a collar and dozens of toys that she drenched in cat spit and left all over the house. She was selfish and egocentric but on occasion thought to redeem herself by reciprocating for our generosity. For example, on various occasions she brought us disemboweled rats, lizards and birds, some still clinging to the last threads of life. That was sweet I suppose, but depositing them on our bed in the middle of the night did not allow for a restful night’s sleep.

After close to a year of doting attention, we took her to the vet for a checkup. Yes, she had been “fixed,” (a term I find particularly offensive) and the vet tech gave her shots for a cost of $176. I have been told we got off cheap. A few days later Opus went out for an afternoon prowl and simply disappeared. Barbara was heartbroken. We searched the neighborhood, inquired of residents in a two block radius of our home, searched garages and sheds where she might have been trapped. Nothing.

I blamed this loss on coyotes who I was certain had dined on her. But as it turns out, the coyotes did not eat her. Six weeks after her disappearance she shows up, her fur straggly and matted. Although she was grossly overweight, she still begged for a handout. She wore a new collar on which was attached a tag and a phone number. Barbara called the number to inform whoever answered that she or he had our cat and thanks for taking care of her.

The lady at the other end of the line lives on an adjacent street no more than 100 yards from our house and claims that "Snookie" (her name for Opus), is and always has been her cat who has been missing for (are you ready for this?), two years and she would like to come over and get her. Rather than argue over the telephone, Barbara gave the lady directions to our house and she said she was coming over. An hour later (that’s how long it took to find our house which is half a block away), she came in her SUV with her 9 year old daughter who had allegedly been heart broken over the loss of “Snookie.” For two years? Give me a break.

I was ready for some serious negotiations when she whipped out a photo album showing Opus or "Snookie" as a kitten, and then as a mother nursing her young. One of her kittens who is now a grown male, Rex, and still living at his place of birth, was purported to have amorous inclinations towards his mother before she was “fixed.” That’s cats for you. But to be perfectly honest the photos were convincing. Opus and Snookie are one and the same. No doubt about it. Add to that the presence of a pouting 9 year old daughter and I knew a successful negotiation was as likely as President Bush admitting to a mistake.

In utter defeat I led the mother and daughter upstairs where they scooped up the sleeping Opus, who I think growled, and left with a curt good bye and no offer to pay the recently incurred vet bill. It is obvious that the overweight Opus is not eating proper food. And she hasn’t been brushed since she lived with us. That seemed a good basis for getting her back. I did some research, violating the rule about having an ass for a client, and it was not helpful.

In an opinion out of the second district, In re Marriage of Isbell, Willoughby (2005) authored last year by my colleague, the now retired Justice Nott, the appellate court concluded that in a marital dissolution action there is no authority to support who should get custody of Emmit the cat based on the best interest of Emmit. Instead, the court opined the only consideration is whether Emmit is the separate property of the wife. Luckily the opinion is unpublished and therefore not citable.

In another unpublished opinion, also from the Second District, my colleagues in Division V were of no use. The justices had their backs up, about whether a cat who bites should be tethered. In Goldshine v. Lafferty (2004) the appellate court acknowledged out-of-state authority that holds it is not abnormal for cats to bite under the right circumstances. For example in Lee v. Weaver (1976 195 Neb. 194, 237 N.W.2d 149) the appellate court found it not surprising that the cat who growled at the housekeeper’s vacuum cleaner and broom would one day bite the housekeeper. Opus growled at me and the vacuum cleaner on occasion, but I cannot say she bit me. And this is where George Bush and I are of like mind. I bet he agrees that she would have bitten me if she could. But getting damages for infliction of emotional distress might be a stretch.

Then I found a recent case directly on point. Unfortunately, it is of no use. It’s from Texas. In Willick v. Deastadeak (183 S.W. 3d 92, Tex.App. Dallas, 2006), defendant found a kitten shivering in the rain and cold in front of his house. He took cat in and nurtured him back to health and incurred vet bills. Over a year later, plaintiff, the original owner who lives next door, saw the cat in the neighbors window. Both sides want the cat. Neither will accept money. The Justice court ruled in favor of new owner who named the cat "Biscuit." On trial de novo court ruled in favor of original owner who named the cat "Sweet Pea" and awarded $80 damages. The Court of Appeal ducked the issue by deciding it lacks jurisdiction to hear the case. We might have had an answer if the damages had been at least $100.

I called my friend, the ancient but still wise Miss Anne Thrope who once wrote a legal advice column for the Police Gazette. Her advice was as follows: “Get over it and get on with your life.” I don’t believe she adequately researched the problem. If you agree with her, please don’t bother to write.

Dreams of Judging Can be a Nightmare

2006-04-13T12:09:00.000-07:00

You know the story about the patient relating a terrible nightmare he had had the previous night. “Doctor, it was horrendous. I dreamed you were my mother.” The doctor replied that indeed it was a disturbing dream. “What did you do after you awoke from the dream?” she asked. “I woke up in a cold sweat, took a shower and had breakfast.” “What did you have for breakfast?” asked the psychiatrist. “Coffee and a piece of toast.” “You call that a breakfast?”

A similar incident occurred in my home recently. At breakfast my wife told me about her frightful nightmare the night before. “I dreamed that I, not you, am the judge. There I was in my robes, and . . . ” What did you feel? I asked. “Don’t interrupt when I’m speaking.” “But I’m your husband, I always interrupt.” She then did something quite unexpected. She waved a finger in front of me. “One more outburst and you’ll be in contempt.” I let her go on. Finally she let me speak. “I read somewhere that . . . ” She interrupted . . . “that’s hearsay, inadmissible.” “But we are just having a discussion,” I said. “Overruled.” I said something else. The cat objected and she sustained the objection. I kept speaking and she repeated in a louder voice, “Sustained!” Was that her? I looked around to see if the cat had said anything.

Those readers who have not donned judicial robes might question whether my wife’s dream was in fact a nightmare. They might believe that the authority she exercised reflects the awesome power and respect real life judges command.

Let me set you straight through an example. I had this idea for a new law related reality show. Yes, I know that the recent reality show, “The Firm” went down in flames. Well what do you expect? The emphasis was on trial lawyers and their pathetic efforts to rout their opponents. Yawn. The show would have been a rousing success if the focus had been on the judges instead of the lawyers. My idea for a reality show is based on an old radio show, popular about 60 years ago, called “Queen for a Day” emceed by Jack Bailey.

It’s hard to believe, but in those days the contestants were only women. The winning contestant was the one with the most sympathetic hard luck story. “My job interview at the telephone company was a disaster. They were about to test my voice but as I sat down to speak into the microphone my nylons tore and I shrieked ‘operator.’! I didn’t get the job and now the bank is threatening to foreclose on my bungalow.”

The winner was crowned queen for the entire day. Jack Bailey would recite the itinerary for the magical day of the queen’s reign. “Your majesty will be chauffered to lunch at the Brown Derby on Vine Street, after which you will be whisked off to Bullock’s Wilshire, (now a law school) for an afternoon of shopping. A mid-afternoon snack at Pig N’ Whistle and later dinner and a show at the Mocambo where you will be escorted by Cesar Romero or George Raft, if you are not too tall. ”

So here’s my idea. A reality show that gives deserving lawyers who have lost a disproportionate share of cases due to bad rulings the opportunity to become “Judge for a Day.” The emcee will announce to the winner what is in store for her or him, and then we will actually witness the judge’s activities throughout the day. “Before sunup your Honor will be whisked off to the court house in early morning heavy traffic. Once at the courthouse you will wait for the private judge’s elevator, and wait and wait until you realize it doesn’t work and then climb ten flights of stairs to get to your chambers, where it is freezing cold and piles of motions sit on you desk waiting for your review.

But first you have a morning settlement conference. You patiently craft a settlement proposal that does justice for all parties. After you have gently cajoled and tried amiably to persuade the parties to settle, the recalcitrant lawyers and their obstinate clients mock your efforts, refuse to settle, or even talk to one another, threaten to file additional causes of action against each other and storm out of your chambers.

You then take the bench for the morning law and motion calendar and hear dozens of motions, few of which are written in English. These include a multitude of summary judgment motions one of which contains six thousand issues of disputed fact. The lawyers vilify one another in their briefs and oral argument.

Then you will continue with the trial you have been trying to conduct. You promised the jury it will end this day, but a key witness under subpoena has not appeared. The witness, a single working mother with three minor children is vital to the case, and the attorneys are pressing you to issue a bench warrant. A member of the press sitting in the courtroom is busily taking notes.

You take a recess and peruse in chambers the charges brought against you before the Judicial Performance Commission by the pro per against whom you sustained the demurrer to his complaint which alleged on information and belief that the mayor is trying to kill him.

It’s now time for lunch. You are due to install the officers of the Left Handed Lawyers Bar Association. You will arrive at the local hotel where the gala event is taking place just as they serve you the delectable entrée of chicken fried steak. That evening you attend a cocktail party sponsored by Citizens Against Judicial Abuse where guests cross-examine you about the Rodney King case and Judge Alito.” I could go on, but my show idea was rejected in favor of another show called “Test Pilot for a Day.”

This proves that being a judge is not all it’s cracked up to be. Our power is limited. Some people have real power. Take for example the baby naming official in the Czech Republic. Friends of mine who are citizens of that country recently had a baby. A Czech baby must have a name that is listed in the book of names. If the parents wish to name their baby some other name they must get approval from the official “Naming Person.” She decides whether or not the name is legitimate, not the baby mind you, but the baby’s name. Sure, you can name your baby whatever you wish despite the naming person’s disapproval, but try and get a birth certificate. My friends named their baby a name that does not appear in the book of names. Luckily, the Naming Person went along. My respect for the baby’s privacy does not permit me to reveal the name. Her gurgles and cooing could be monitored by governmental officials.

American judges do not have the power of the baby naming official. Sure, people stand up for us when we enter the courtroom but that is only because a bailiff orders them to. Standing up for us literally is far different than doing so metaphorically. Getting up when you are sitting down is annoying, but today people do it for everyone. Every performer, however mediocre, gets a standing ovation. Rock performers, opera singers, mimes, organ grinders, jugglers, weather forecasters--they all get standing ovations.

I think it impolite to leave as the curtain comes down at the opera for example. We can at least stay and express our appreciation for the performers, but is everyone deserving of a standing ovation? The person in front stands up and you have to stand up to see the singers bow. And soon the entire audience is on its feet. Elderly people have to be awakened and helped up by their caretakers. It’s as bad as attending a football game. A good play and everyone is on their feet screaming. I see most of the game by way of instant replays on the giant screens above the end-zones.

But, on the other hand, it sure makes the performers feel good. I therefore thought about instituting standing ovations during oral argument at the Court of Appeal. Not for the lawyer’s arguments mind you. Who is going to applaud? Clients seldom attend sessions of the Court of Appeal, and certainly not other lawyers in the courtroom who are far more concerned about their own cases. No, I wanted a standing ovation for the justices. In my division we are known for asking snappy, quirky questions. It might be a bit time consuming for the ovation to occur after each argument. But waiting until the end of the calendar leaves an empty courtroom save for the lawyers arguing the last case.

I guess this is just another forgettable idea. I then thought about encouraging sustained applauds when we take the bench at the opening of the court session. The “APPLAUSE” sign used on Jack Bailey’s Queen for a Day show might be available on E-Bay. I decided to sleep on this last idea before acting on it but had a terrible nightmare which convinced me to reject that idea as well.

I dreamed I was a lawyer appearing on a law and motion matter. The judge I appeared in front of was me, rudely asking pointed questions. I awoke in a cold sweat. What could be more horrific than me appearing before me? I shuddered and realized neither of us deserved a standing ovation. I suppose this all proves that power, absolute or limited, has little to do with respect. Respect, like anything else worthwhile, must be earned. Doing our work as best we can without thinking about respect is probably the best way to get it. If you think otherwise, you’re just dreaming.

Stretching The Parameters (Yikes) of Language

2005-12-19T17:15:00.000-08:00

"Sounds like!" I said . . . screamed . . . that’s what I said, but what I did is . . . scream. Maybe shriek is what I did. Whatever. (Strike "whatever.") So I shrieked, no I think "shouted" is better. I shouted, "parameter is not the same as perimeter!" They pulled my hands off the neck of the research attorney who had written, "Within the parameters of our standard of review." Luckily she didn’t fight back. I hate words that come from disciplines I cannot understand even if my life depends on it.
Dictionaries do not agree on the meaning of "parameter" . . . I think. Webster's Third New International Dictionary offers this illuminating definition: "The relative intercept made by a plane on a crystallographic axis, the ratio of the intercepts determining the position of the plane." If that isn't clear, try the Random House Dictionary of English, 2nd edition that explains that "parameter" is "A constant or variable form in a function that determines the specific form of the function, but not its general nature as in f(x)=ax, where a determines only the slope of the line described by f(x)."
In a measured voice I told the research attorney, "Parameter" is for mathematicians, (or some related field) not judges . . . or their research attorneys. You used "parameter" because it sounds like "perimeter."
She momentarily stopped massaging her neck with lotion and coolly delivered this riposte. "Current usage allows for a broader use of the word. It is quite acceptable in educated circles to use ‘parameter’ to mean ‘boundary’ or ‘guideline.’"
Maybe so, but not in my circle. Granted, that language and usage changes; it is unseemly for a word to acquire a new meaning because it sounds like another word. The period of transition can wreck havoc. Take for example what happened to the transformation of the word "evacuate" in my neighborhood newspaper. A front page headline told of an "armed old man bandit" who robbed a local bank. Put aside for a moment whether a bank can be robbed, and that I was incensed to read that the suspect’s age is somewhere between 50 and 60-- just call me Methuselah. No one whose age falls in the decade between 50 and 60 is old. Got it?
Sorry. I got a little hot, and off track. To get back to my point. The article describes the aged robber as victimizing "multiple tellers" at various local banks over the past several months. Come to think of it, he could have victimized various tellers at multiple banks. But anyway just last August the elderly bandit "robbed" Washington Mutual. He entered the bank with a gun and threatened to detonate a device that looked like a pipe bomb. The article then states, and I quote, "The employees were ejaculated" and "the area sealed off." Some employees asked the robber when he would call again. Others lit a cigarette. Jay Leno thought the robbery had occurred at a sperm bank.
Language is indeterminate. Even when the right word is used, meaning suffers if the speaker fails to clarify the context. To be understood we must be precise. At a neighborhood restaurant I ordered soup and stressed that I wanted my soup "hot." The soup came lukewarm, but so peppery I had to drink four glasses of ice water. I like my soup hot in temperature, not spicy.
A reporter friend of mine once interviewed the winner of a beauty queen pagent. She asked the interviewee how it felt being the new reigning queen of an artichoke festival. The queen gazed at the interviewer and with a beatific smile, her teeth gleaming in harmony with the zirconium crown on her head said, . . . wait, first let’s see what the reporter wrote in the paper. The beauty queen said, "I feel odd." The next day the outraged beauty queen called to complain that she had been misquoted. How did the beauty queen feel? She felt "awed," perhaps an odd way to express the overpowering emotion at being crowned queen of anything, especially artichokes.
What we write in opinions, statements of decision, briefs and motions may have a profound effect on the outcome and the direction and shape of the law. "Sol rented the store." Was Sol the lessor or the lessee? The context might explain whether Sol was collecting or paying rent, but the sentence standing alone doesn’t tell us.
Many years ago I began an opinion with this sentence. "Sometimes a defendant’s rights fall between the cracks. Here they fell in the Grand Canyon." Luckily I caught the error before the opinion was published. My comparison between a crack, as a crack in the floor, and that enormous crack in the earth known as the Grand Canyon was a failed metaphor. If the defendant’s rights fell between the cracks in the floor, then his rights were preserved because they did not fall in the cracks, just the opposite message I wished to convey. Through harmless oversight, rights of a defendant that fall in the cracks could well be non-prejudicial. But rights that fall in the Grand Canyon might even get a reversal from Justice Thomas.
But it is easy to be hard on those who make an offhanded remark that on reflection sounds ridiculous. This brings me to a list of quotes my friend Dr. Joyce Weisel Barth recently sent me via e-mail. The quotes seemingly sound foolish. I say "seemingly" because despite my obdurate position on "parameter," I have tried to tease a plausible meaning from the speaker's words. Unlike staffers at the New Yorker Magazine who gleefully expose solecisms, non sequiturs, misplaced modifiers and malapropisms that pop up in various publications throughout the country, I will be more forgiving, unless they misuse "parameter." My willingness to so extend myself stems from the likelihood that sooner or later, my name will be among those who have been held up to ridicule. Samuel Goldwyn, Casey Stengel and Yogi Berra, make room.
Take this quote attributed to Philadelphia Phillies manager, Danny Ozark. "Half this game is ninety percent mental." Maybe the math works. If Ozark is speaking about the first half of the game, then 10 percent is brawn or luck. But what of the second half of the game? The second half could also be 90 percent mental, but after a player has spent so much of his mental energy during the first half, the second half could be 20 percent mental and 80 percent whatever. (Strike "whatever.") In fact, my research attorney, Peter Cooney believes that half the game could be ninety percent mental and 100% physical. He is right, and he never uses the word "parameter."
Here’s a quote attributed to Marion Barry when he was Mayor of Washington D.C. "Outside of the killings, Washington has one of the lowest crime rates in the country." Petty theft is down 300 percent.
Dan Quayle has taken his share of hits. I think it’s unfair that he is mocked for favoring California. He is reputed to have said: "I love California. I practically grew up in Phoenix." No wonder he loves California. And besides, it’s a great place to eat a potatoe.
Joe Theisman, NFL quarterback and sports news analyst tells us "The word ‘genius’ is not applicable in football. Genius is a guy like Norman Einstein." I would add Norman to the list that includes Rudolph Newton, Jasper Mozart, Morton Freud, and Jimmie Picasso.
Al Gore once warned: "We are ready for an unforeseen event that may or may not occur." It would take someone like Norman Einstein to discover an event that may not occur.
The Department of Social Services of Greenville, North Carolina sends this cheery notice to the moribund. "Your food stamps will be stopped effective March 1992 because we received notice that you passed away. May God bless you. You may reapply if there is a change in your circumstances." Even this message is not as ridiculous as it sounds. Note this reply. " I wish to reapply for food stamps. Sincerely yours, Lazarus."
When Mark Fowler was FCC chairman he offered these encouraging words to patients using a heart monitor. "If someone has a bad heart, they can plug this jack in at night as they go to bed and it will monitor their heart throughout the night. And the next morning when they wake up dead there will be a record." The manufacturer is working on a jack that monitors the heart without killing the patient.
It would also be salutary if we do not kill the language. But we must allow it to grow and change within flexible parameters, I mean boundaries. Whatever.

Law Firm Breaks Up-This one a Reality Show

2005-10-11T15:34:00.000-07:00

“A wonderful thing happened after the second episode of the reality series, The Law Firm aired a few months ago---it was cancelled.”

This is the opening sentence of a review written by my decrepit friend the ever ancient Anne Thrope. Miss Anne, as she likes to be called, once worked as a ghost writer, I mean staff attorney for the United States Supreme Court. Perhaps this is apocryphal, but she is reputed to have chastised Justice Taney for his infamous Dred Scott decision. From time to time I have called upon Miss Anne, when she is alert, to contribute to my column. Her decades of experience make her uniquely qualified to offer advice to troubled attorneys and judges. And that has been her primary contribution in the past.

But astute reader that you are, you have accurately perceived that today’s column is not of that genre. And no doubt you are asking yourself why I simply did not write the review myself. The simple answer is that I have a near pathological aversion to “reality” shows. Most of these shows highlight the baser human characteristics of duplicity, mendacity, envy, betrayal, corruption, anger, and calumny, to name a few. Yes, these traits are not imaginary, but I think that portraying them as the salient characteristics of human nature skews reality.

My bias would surely hinder my writing a balanced review of The Law Firm. True, columnists are expected to express their views, but my distaste for this genre could distort my account of the show to as much of a degree as I believed the show skewed its portrayal of the legal system. So I turned to my old pal Miss Anne to enlighten my readers.

This is what follows Miss Anne’s unequivocal opening sentence:

“Rumor has it that subsequent shows already taped will be shown on NBC’s cable channel Bravo. Hardly an apt term to characterize the series. There isn’t a 'Boo' Channel is there? If watching tyro lawyers stumbling over their irrelevant questions to parties with frivolous lawsuits is what legal practice has come to, then Dickens was right. It is not just the law that is 'a ass,' but so are we for watching the degradation of a grand profession. To think my caregiver awakened me from a sound stupor to watch the entire show. This was a sacrifice for which this reviewer deserves commendation.

“Describing the show from A, ‘awful and atrocious' to Y, had to stop at Y, there are no derogatory words beginning in Z, except maybe zombie, which is what I felt like after watching the show. Y gives us 'Yahoo,' 'yikes,' and 'yuck.'

“The senior partner of the firm, the famous litigator and TV analyst Roy Black is, I mean was, the senior partner of the firm. He oversees a bevy of newly admitted lawyers who divide into teams to litigate real' cases with 'real' clients presided over by 'real' judges, retired judges that is. A clause in their contract said, 'WARNING-APPEARANCE ON THIS SHOW MAY BE DETRIMENTAL TO PRIVATE JUDGING CAREERS.'

"It is rumored that in one episode, the legendary Judge Broadman, known for his unorthodox sentences in criminal cases, issued a unique ruling in a civil case. He ordered the CEO of a corporation who had defrauded the shareholders to wear a Norplant device for life. Broadman reasoned it would be detrimental to society should the CEO pass on to her offspring a genetic disposition for dishonesty.

“I wonder how the judges recruited for the show were conned, I mean induced to participate in this series designed to reveal how brand new lawyers prepare for cases that go to trial. That should have big audience appeal. Already I was suspicious. What law firm would allow newly born lawyers in shell shock from the bar examination to actually try a case? The malpractice premiums alone could lead to bankruptcy.

“Like other reality shows, this one caters to the audience’s desire to see someone sacrificed, destroyed, humiliated or ruined, a sport the Romans carried to extremes before the fall of the empire. Are we far behind? The lawyers who screw up the most are told to turn in their Westlaw passwords and take a one-way trip in the elevator to the lobby. No lifelines on this show.

"We see young associates in a law firm preparing for two cases. Two lawyers are on one side and two on the other. One case involves a plaintiff suing his ex-friend for putting up a gag 'wanted' poster in his small convenience store where most patrons know plaintiff. The poster accuses plaintiff of belonging to a terrorist organization called 'EAT ME.' The poster is so obviously a bad joke that even George Bush wouldn’t have sent this plaintiff to Guantanamo. The young associates interview witnesses and prepare for trial. They disparage their opponents and focus on weaknesses in their personalities. Mmmm, maybe it is like real life. Defendant lawyers lose the case and the trial judge, in an outburst of creativity, threatens to impose punitive damages on defendant if he doesn’t immediately apologize to the plaintiff. Forget that punitive damages were not pled or prayed for. Even Judge Judy would have second thoughts about doing this.

"Another case involves arbitration. A savvy, business oriented dominatrix sues the person she hired to create her website. The distinguished and unflappable Judge Dion Morrow sensibly rules that the contract is too vague to be enforceable. The losing attorney utters a profanity and storms out of the office. Well, I guess that’s real. No contempt powers for arbitrators.

"During the post-mortem back at the law firm, senior partner Black offers valid insights into trial advocacy. He excoriates the rude attorney at the arbitration and then fires the defendant’s lawyers in the 'terrorist threat' lawsuit. Camera follows the out-of-work lawyers to the elevator which for them goes only one way.

"Why couldn't The Law Firm be uplifting like the one reality show I adore, 'Dancing with the Stars.' A television personality teams up with a professional dancer and competes with another similar team in a variety of dances that are judged by a trio of choreographers. Their votes are only advisory. Viewers call in and vote for the winner. The winner’s prize goes to charity. Yes, there are winners and losers, but only in a tongue in cheek way. The contestants do not slander or excoriate each other. They are working to develop a skill that requires hours of commitment, practice, facility, and grace. The pithy comments from the judges give the viewer some insight into the complexity and artistry of the enterprise. With the exception of Dancing with the Stars, I say, down with reality shows. They lack authenticity. Yours truly, Miss Anne Thrope"

I don't agree with all of Miss Anne's comments, but I did watch Dancing with the Stars, and was cha cha cha-ing all through the house. Despite my aversion to reality shows, I must acknowledge they are a part of our culture, and . . . O.K. I have this idea for a reality show. I call it "The Appointment."

A group of seasoned lawyers (that leaves out those rejected from "The Law Firm) wish to be appointed to a single opening on the trial bench. They are put through a series of grueling tests. First they have to fill out an application. This is problematic for a busy practitioner who will have to block out a chunk of time to complete this task, say maybe three or four months. Imagine being such a lawyer. It can be disheartening to dredge up cases from decades past and list opposing counsel, particularly the ones you defeated who threatened revenge no matter what. Groups of evaluators many of whom are anonymous, pour over your life as though you were an ex-union organizer applying for work at Wall Mart.

You drum up support from people who may have to appear before you in the event you are selected. One is your opponent in a hotly contested business case. He wants a continuance, but your client is unalterably opposed to it. Hundreds of questionnaires are sent to people who like you, people who hate you, people who don’t know you, and people who are your competitors also seeking to become the judge you want to be. And you receive questionnaires about your competitors. Do you cut a deal with them? A good or average review in exchange for a similar review from them? If you make such a deal how do you know they will live up to the bargain? Whatever you say about them, do you believe it? Is this ethical behavior for anyone let alone a judge? Should you even consider such disgraceful conduct? Who will know? But that is not the point or is it? .

This show has all the ingredients of a top selling reality show. The participants are made to open up and reveal their lives with all their insecurities, ambitions, fears, weaknesses and strengths. Only one will get the appointment. Who will it be? I thought this show would be a winner, but someone told me there is already one like it-- Survivor.

Judges Must Stay In Tune

2005-08-17T14:55:00.000-07:00

Peter Stumpf the principal cellist of the Los Angeles Philharmonic plays a 17th century Stradavarius cello. Although “valued” at around 3 million dollars, some would consider the cello, made by Antonio Stradivari in Cremona, Italy, in 1684, priceless. Stumpf doesn’t own the cello. The Philharmonic owns it. But when you are as good as Stumpf the L.A. Phil lets you use it. In legal talk Sutmpf is a grateful bailee. The L.A. Phil is the generous bailor. An incident last year no doubt made the L.A. Phil an agitated bailor. Apparently, musicians, like professors and judges, can be absent minded, an attribute to be expected with so many weighty things on their minds. But brain surgeons for example also have weighty things on their minds, and we do not expect them to be absent minded with their scalpels. After all, they make on the spot life and death choices. But I suppose even brain surgeons might forget where they put the shopping list, or the car keys.
Getting back to Stumpf, you might recall reading about his inadvertent peccadillo last year. At the time it was no peccadillo, but in light of the subject matter, “peccadillo” sounds so musical and Italian. Stumpf came home late in the evening to his house in Silver Lake after performing in Santa Barbara. He carried the multi-million dollar “Strad” in its case. He put the case down on the front porch of his house, fiddled (pardon the expression) with his keys, opened the front door and went inside . . . without the cello. He left it on the front porch. I guess he was tired. Early the next morning, a thief came by on a bicycle and left with the cello case inside of which was the priceless Stradivarius. A neighbor’s security video camera across the street captured the event and showed the thief wobbling on his bicycle as he precariously peddled away while grasping the ungainly cello case. Oh dear! For the inquisitive, an obvious and compelling question comes to mind. On what instrument would Stumpf play at the next concert, if in fact the directors of the Philharmonic did not throttle him first?
Not to worry. The cello was found in an ashcan with minor damage. The cello had not suffered much damage either. I don’t know about the ashcan, but the cello was repaired. So what is the point of all this? It leads to a seemingly simple question, pregnant with profound implications: who is Stumpf without the Strad? Yes, yes, I know he is still a world class cellist, . . . but . . . . “But what . . . ?," the impatient will inquire. Allow me to elaborate. Stumpf is Stumpf just as we all are who we are, except Stumpf the cellist is not Stumpf the cellist without a cello. Well, OK I grant you that if I were introducing Stumpf to someone, and that assumes I know him and I don’t, but if I did, and I wanted to impress the person to whom I was making the introduction, I could very well say, “And this is Peter Stumpf, the principal cellist with the Los Angeles Philharmonic.” And if I were malicious and not particularly fond of Stumpf, I might add: “This is the clown who left a 3 million dollar Stradavrius cello outside on the front porch of his house.”
In fact, I would not utter these words simply because I am capable of doing the very thing that Stumpf did. Of course this is strictly conjecture because no person, institution, or organization would ever entrust a Stradivarius cello to me under any circumstances, including the presence of a 24-hour armed guard. I feel unworthy playing “I’m in the Mood for Love” on my Steinway. I am not sure if that’s because of the title of the song or the instrument. Suffice it to say, my wife does not trust me with a shopping list.
But getting back to my point. We can indeed say that Stumpf is a cellist, and safely introduce him as such, but to realize the unique attribute that makes Stumpf the cellist he is, it is absolutely indispensable that Stumpf have a cello. A cellist without a cello is like a pilot without a plane.
So what about us in the legal profession? Has it occurred to you that we do not have cellos or any reasonably close counterpart? Take judges for example. Contrary to what is depicted in courtroom scenes in old movies and television shows, we do not even have gavels. We may have a ceremonial gavel or two that friends or associations give us on which is inscribed the same inane rhyme that assumes the judge is peripatetic. Does not anyone realize that “travel” is not the only word that rhymes with gavel? If there must be rhyme written on a gavel, I prefer “Don’t cavil with the gavel.” I don’t know of one real life judge who uses a gavel. It is true we do wear robes, but they are a symbol of the office. If we left our robes at home, and ignored Government Code section 68110---which requires us to wear them, we could still sentence some poor devil to 20 years.
And what about you lawyers? Sure you have your briefcases, and silk suits, (well some of you) but you could wear polyester and still practice (maybe not in Century City), but you get my drift. We do not have cellos. Think about it. The brain surgeon must use implements, scalpels and precision knives come to mind, and I am sure there are many more indispensable tools that are required for surgery. Not with us.
We have one thing and one thing only: words. That’s it. Judges for example, utter words and people lose their freedom, their money, or have to do things or stop doing things.
Words are so important to our work that we have to be careful how we use them. They are too important to be left out in the cold. They have to be taken inside and watched over. For example, a person’s freedom or life can depend upon how judges or jurors view the instruction on reasonable doubt. To arrive at guilt in the old days we had to have an abiding conviction to a moral certainty. No one quite knew what “to a moral certainty” meant though today many people are quite sure of their beliefs to a moral certainty.
In the hope of achieving clarity, “moral certainty” was jettisoned from the reasonable doubt instruction in California . (See CALJIC 2.90) Yet, uncertainty remains. In People v. Johnson 119 Cal.App.4th 976, (2004) the trial court tried to explain reasonable doubt to jurors by referring to decisions we make in our everyday lives. The trial judge explained that when you drive through an intersection on the green light, you might be cautious because it is an intersection, but it would not be reasonable to get out of your car and check to see if the red lights controlling cross traffic were malfunctioning. Damned right, and you would be late for court. The criminal conviction was reversed. The Johnson case cited the early case of People v. Brannon, 47 Cal. 96 (1873) which teaches that it is error to equate ordinary everyday decisions with reasonable doubt.
Another Johnson case, People v. Johnson 115 Cal. App.4th 1169 (2004). (Note-2004 was a good year for mishaps.) The trial judge told the jury he would not attempt to paraphrase the reasonable doubt instruction, but then indirectly did so by contrasting it with a ridiculous doubt. For example, we all have a doubt whether we will be here tomorrow. He analogized reasonable doubt to doubts a couple might have about whether a new home is a wise investment. The appellate court pointed out that this is a far different calculus than deciding whether the prosecution has proved the case beyond a reasonable doubt.
And that takes us to Supreme Court nominee John C. Roberts. His words have earned him an extraordinary number of “wins” in the United States Supreme Court. We will see how effective are his words during the confirmation hearing. No doubt there will be questions about judicial philosophy, Roe v. Wade, Robert’s dissent as a federal appeals court judge in a case involving the Endangered Species Act, and questions about whether the Constitution is an endangered species. But one thing I know beyond a reasonable doubt: Judge Roberts will carefully use his words as though they were a Stradivarius. His ability to use them effectively to advance a reasonable argument should remind us how precious are our instruments. Like the Stradivarius, they must be cared for and treated with respect. They can so easily be stolen and misused when they are carelessly left on the porch after we have locked the front door for the night.
It is hoped (not hopefully) that the Senators use and tune their Stradivarii (or whatever the plural is) at Judge Robert’s confirmation hearing. If they use second rate instruments the hearings could well degenerate into chaotic dissonance. Will the Senators be well served by using the reasonable doubt instruction to guide their decision? If they do, let us hope they do not rely on the scuttled phrase that requires a decision based on moral certainty. “Moral certainty” is what is left when the Stradivarius goes missing.

FIRST THING WE DO, LET'S KEEP THE JUDICIARY INDEPDENDENT

2005-06-06T16:32:00.000-07:00

"First thing we do, let's kill all the judges." That is what some politicians want to do to the judiciary. Proposed ways to dispatch the black robed miscreants include: impeach them, abolish their office through legislation, or simply treat them as a trauma center and withhold funding. The threats are anything but parochial. They affect not just the judicial branch, but all citizens.
These threats were ostensibly engendered over dissatisfaction with “activist” judicial rulings, and in particular, the heart wrenching decision in the Terri Shiavo case. All the courts involved in that tragic case were accused of judicial arrogance for a refusal to “follow the law.” But that is precisely what those courts did. For all we know the Florida trial judge who first ordered Ms. Shiavo’s feeding tube removed may have wished to keep Terri Schiavo alive no matter what her condition. But he was compelled to reach his decision on the evidence and the law. Indeed, if the trial judge thought his personal beliefs would have hampered his ability to objectively view the evidence, he would have been required to recuse himself. It was the consequence of his following the law that produced a result that critics found so unacceptable.
Ironically these critics were in effect excoriating the trial and appellate judges for not being “activists.” They wished for a ruling that would have kept Terri Schiavo alive without regard for her wishes or the law. This in turn prompted Congress to enact a "Terri Schiavo law" giving federal courts the opportunity to hear once again a state law matter that had been concluded and this time decide the case correctly. The legislative branch displayed contempt for the separation of powers principle they accused the courts of ignoring. When the federal courts refused to again hear the case, some congressional leaders spoke of a judiciary out of control and threatened to metaphorically “kill all the judges,” or at least those whose decisions they disliked.
The original quote, “First thing we do, let’s kill all the lawyers,” I have often seen framed in lawyers’ offices. Taken out of context the words have been misinterpreted as reflecting a pervasive public mood about pesky lawyers creating havoc with baseless lawsuits. Far from it. They are taken from Shakespeare's Henry VI, Part II. Jack Cade, a revolutionary seeks, to overthrow the government and depose the King. While he is inciting a mob to overthrow the government, one of the ordinary citizens, Dick, a butcher, yells the famous quote, “The first thing we do, let’s kill all the lawyers.”
Far from denigrating lawyers, the quote speaks to the value, significance and importance of a government’s judicial system. It is the hallmark of civilization. Without it, we have anarchy and chaos. How to undermine the government and destroy it? “First thing we do, let’s kill all the lawyers.”
By upsetting the balance between the separate branches of government, Congress seeks to punish a judiciary for deciding cases the “wrong way.” The irony of this crude attempt to usurp the separation of powers is obvious. Yet, several legislators concerned about the Shiavo case were motivated by genuinely felt moral principles, and not just crass political motives. But their dissatisfaction was with the law that the judge was bound to uphold. The trial judge could have ruled the other way if he disbelieved the testimony of Michael Shiavo concerning his wife's wishes, or if he had found unpersuasive the expert testimony concerning her mental condition. And if he had made such findings, he would have been bound to rule the other way.
It is not surprising that numerous courts in both the state and federal system refused to hear the matter. Whatever certain members of Congress felt about the Shiavo decision, federal courts determined that this was a state matter that had been concluded. And under both state and federal law, the standards of appellate review mandate deference to the trial court’s findings. It is rare that trial court decisions are reversed because of insufficient evidence. It is seldom possible to make informed decisions about substantial evidence on a transcript.
That is not to say that we do not nor cannot make valid assessments from the written page. We can draw a multitude of impressions about Madame Bovary, or Anna Karenina. We can try to do the same with the unadorned and seemingly prosaic testimony of a witness in a marital dissolution action recorded in a transcript. The words come to us free from the gloss and refined literary filter of Flaubert or Tolstoy, but our insight is limited. It is the trial judge, observing the witness respond to questions under direct and cross examination who is in the best position to make an informed judgment on credibility. The judge then must render a judgment in accordance with the applicable substantive and procedural law, the rules governing evidence, and burdens of proof. The judiciary has no free reign; it operates under constraints.
Judges, like anyone else in public service are and should be subject to legitimate criticism. Law professors make their living more often “burying” than praising judicial decisions. Even judges judge judges. Just look through the appellate reports. But the current debate on judicial philosophy has caused more confusion than enlightenment. The Shiavo case is an example of how radically different points of view interpret “activism” in radically different ways.
One can understand the desire of the appointing authority, be it the president of the United States, or a governor, to hope if not expect their judicial appointees to rule in a manner consistent with their own judicial philosophy. However subtlty or directly these expectations may be expressed to the prospective nominee, predictability is seldom attainable. Exhaustive questionnaires, probing interviews, and recommendations from "kitchen" cabinets offer some insight, but not certainty as to how a judge will rule in a particular case. However disturbing this may be to a president or governor, that’s how it is and must be with an independent judiciary as a co-equal branch of government.
California understands the importance of a truly independent judiciary. To assure that merit, apart from "political" considerations figure prominently in the selection process, we have an independent Judicial Nominees Evaluation committee (JNE). Created by the legislature in 1979, the JNE commission is an agency of the State Bar created to evaluate candidates for judicial nomination or appointment by the Governor. The Commission is presently composed of 34 members reflecting the rich diversity of our state. Thirty members come from various segments of the legal community and four are public members. They are all selected by the State Bar Board of Governors. The non partisan neutral commission complements the governor's investigative process. It receives and evaluates confidential questionnaires sent out to members of the legal community relative to a nominee's qualifications. Competence, integrity, work ethic, and temperament are areas the Commission explores in depth. The Commission's thorough evaluation may expose factors that make a candidate unsuitable for judicial office. This information, in turn, is beneficial to the appointing authority and to the public.
It is the judiciary from which we expect rigorous analysis, unwavering integrity, and genuine independence. The JNE Commission helps ensure that judges of this caliber are appointed to the bench. But to be effective the Commission must enjoy the same degree of independence that is so vital to a fair and impartial judiciary.
At this critical time when the judiciary is under attack a disturbing proposal has been advanced that threatens the vitality and function of the JNE Commission. The proposal seeks to have the Governor's Judicial Appointments Secretary attend the plenary meetings of the JNE Commission. I can’t imagine a better way to stifle a free and spirited exchange of views. It would be like having a party to litigation before an appellate court attend the conference where the justices discuss the merits of the case. The proposal is simply another way of saying, "First thing we do, let's kill the JNE Commission."
The Board of Governors appointed an ad hoc committee composed of past and current JNE Commissioners to study this proposal. Its report issued in February of this year concludes, "One of the principal reasons JNE has been able to perform its stated and statutory mission satisfactorily is that it has been independent of the political process. The presence of a representative of the Governor's Office during JNE deliberations of judicial candidates would be destructive of that independence, would be counterproductive to JNE'S ability to provide fair, candid, straightforward and unbiased evaluations to the Governor's Office, and would irreparably cripple JNE'S ability to perform its mission. The JNE Commission is an enormously valuable independent resource, and should remain so. It does not make the judicial appointments, nor does it want to. It is an important tool in helping achieve excellence in the judiciary of the State of California."
I concur. The workings of the JNE Commission illustrate how one branch of government has a check but not authority over another branch. This is beneficial to our institutions and the public they serve. We should direct our energies to respecting and preserving the balance of power between our separate branches of government instead of destabilizing that balance. Steps to kill the JNE Commission or the judiciary puts our democracy at risk.
I therefore suggest the following: "First thing we do. Let's keep alive an independent judiciary." Our democracy depends on it.

A closing Argument for Johnny Cochran

2005-04-27T14:54:00.000-07:00

Q: When? A: The fall of 1964. Q: Where? A: Division 20, the misdemeanor master calendar court of the Los Angeles Municipal Court. Who? Johnny Cochran and I. Q: You mention your names and not the judge presiding? A: What do you expect from two cocky Deputy City Attorneys barely past puberty? Q: But you are telling us about this today. A: Good point. The judge was Richard Schauer who eventually became Presiding Judge of the Los Angeles Superior Court and a Presiding Justice on the Court of Appeal.
Q: Impressive, but specifically what did you and Johnny Cochran do? A: We were prosecutors, seeking to put behind bars, (county jail bars that is ) dangerous criminal misdemeanants who prey upon an unsuspecting public. Q: How would you characterize the two of you, first Johnny? A: Chairman of the board. Q: And you? A: Me? Q: Yes, you, Tell the truth. A: Senior vice president. Q: Who else is there? A: Lawyers, clerks, witnesses, defendants appearing with and without counsel to enter pleas of guilty or nolo contender or to be assigned out to a courtroom for trial. Q: Do the defendants know they have a right to counsel? A: No, Miranda hadn’t been decided yet. Neither had People v. Dorado (1965) 62 Cal. 2nd 338 (defendant must be advised of right to counsel).
Q: What are you and Johnny doing? A: We are “running” the master calendar court. Q: Why are you not trying cases in a trial court? A: We have tried hundreds of cases, but because we are preparing for special cases that have been assigned to us, the chief deputy has given us a respite in the master calendar court. A: What case is Johnny working on? A: He is preparing for a fraud case that will be defended by Melvin Belli. Q: What does Johnny say about his chances for success against such a formidable opponent? A: He is confident. Q: I didn’t ask for your conclusion, I asked what did he say? A: Say exactly? Q: Yes, that would be preferable. A: “I’ll kick his ass all over the courtroom.” Q: Hmmm. A: Well you asked for an exact quote.
Q: What case were you preparing for? A: The kosher chicken case. You see these chickens . . . . Q: (Interrupting) Would you mind saving that for a future column? A: I could do that. Q: We can hardly wait to read it. Isn't this column about Johnny Cochran? A: Yes, Good point.
Q: So getting back to 1964 in Division 20 of the Master Calendar Court. While you and Johnny Cochran were “running” the master calendar criminal court, did anything of significance happen? A: No, not particularly. Q: So why bring it up? A: I didn’t bring it up, you are the one asking questions. Q: But you are writing this column. A: True, but enough arguing. I remember a typical Johnny Cochran exchange with the judge. Q: So tell us about it. A: Judge Schauer called the name of a defendant, “Thomas Edison Jackson.” Johnny couldn't find the file. In a louder voice Judge Schauer said "Thomas Edison Jackson." Johnny grabbed a file in front of him and said, “Your honor, I see the light.” “Now you’ve done it,” I whispered to Johnny. There was a stunned silence in the courtroom as Judge Schauer glared at us for what seemed an eternity. Finally he spoke. “A most illuminating remark, Mr. Cochran.”
That was quintessential Johnny. He shot me a glance. "Schauer's cool," he said.
Q: So tell us more about Johnny.
A: We met in 1964, newly hired deputies at the City Attorney’s office, an ideal place for young lawyers just out of law school to get trial experience. We tried a potpourri of misdemeanors, but drunk driving cases were our staple. Have times changed. Today, a reading of .10 on the breathalyzer guarantees jail time. Back in the 60’s a reading of .15 could often be negotiated down to a reckless driving.
Many in our class of '64 went on to successful careers. Irv Sepkowitz, besides being one of the funniest and nicest human beings alive, became vice president of business affairs for Universal Studios. Ira Reiner became District Attorney, John Karns, a partner in Karns and Karabian. Charlie Lloyd went on to represent professional football players and became a successful entrepreneur. Also, part of the group was then bailiff Julian Dixon, who during tedious trials studied tedious case books in contracts and torts for his night law school classes at Southwestern Law School. He became a highly respected member of congress.
Johnny was not just a mentor to me, he was an inspiration and a model. His life had been a struggle from poverty in the south to opportunity in Los Angeles. Yet, he was always positive and cheerful. He exuded enthusiasm and confidence. Everyone liked him. If I was feeling down, his very presence was uplifting. You can imagine how juries responded to him. He would flash a smile, begin talking, and another drunk driver or other misdemeanant would bite the dust.
I vaguely remember only one case Johnny lost while in the City Attorney's Office. As I recall the defendant was comedian Lenny Bruce charged with obscenity for uttering words we hear on television sitcoms today. There was the possibility I might have to try a similar case against the playwright and poet then known as Leroi Jones. He later changed his name to Amiri Baraka and became New Jersey's third and most controversial poet laureate. His two one-act plays, “Dutchman, ” and “The Toilet” were being performed at the Coronet theater on La Cienega. I attended a performance. Sprinkled throughout the audience were plain clothes police officers furiously scribbling notes. The tough and raw language, the themes of violence and the belligerent protest against racial injustice roiled the establishment. The City Attorney’s Office under the leadership of Roger Arnebergh was contemplating action. At the conclusion of the performance actress Shirley Knight came onto the stage to rally support for freedom of artistic expression.
During the next few days, Johnny and I met with investigating officers and staff of the City Attorney’s Office to discuss whether an action should be filed. I argued, with support from Johnny, that our obligation was to prosecute criminals, not artists, whose words and language were disturbing to some. I predicted we would and should lose the case should anyone in charge be dimwitted enough to file one.
“Not a bad argument,” Johnny said. “Do the same in court, and you will be one hell of a trial attorney.” We didn’t mention Lenny Bruce.
Johnny was always strongly supportive of law enforcement, this even before his son, the Highway Patrol officer was born. His thesis was simply this. Everyone has a responsibility to do their job right, and to do it with integrity and professionalism. He approached his cases with a commitment to attain the highest level of skill and competence of which he was capable. He strived for excellence. He expected others to do the same in their professions, and that included, indeed was a fundamental obligation of law enforcement officers. "Not to much to ask," he would say, "when people’s freedom and their lives are at stake."
I recall a case in which a personable police officer who Johnny liked and admired, testified in a preliminary hearing in Judge Marion Obera's court. The officer testified that he knocked on the front door, the defendant answered and invited him into the house where he "observed large quantities of drugs." Then came the defense, something unusual for a preliminary hearing. Shortly before the officer had arrived, the defendant and his rock group had been rehearsing for an upcoming gig. They had also been recording the session. When the officer knocked, the band was taking a break, only they had forgotten to turn off the tape recorder. Need I say more. There on the tape recorder, for everyone to hear, was the pounding on the door, the rush of the officers into the room accompanied by threats and obscenities.
Johnny’s disappointment was profound. He had lost a friend, and was furious that this misconduct could reflect poorly on the vast majority of police officers who are skilled professionals dedicated to fulfilling the motto of the department, "to protect and to serve." Johnny, a champion of civil rights, was particularly chagrined because here the officer was black and the defendant white. Johnny, who was ecstatic over passage of the 1964 Civil Rights Act said that at least this unfortunate incident proves we are all equal.
Johnny will always be remembered for the O.J. Simpson case. Many people are angry at him for "winning" the case. But however one may feel about O.J. Simpson, Johnny was not hired to lose the case. He pointed out flaws in the prosecution's case and the Simpson jury had a reasonable doubt. One could debate for years whether, in fact, the case was won because of Johnny's unique skill in connecting with that jury. One of the most astute commentators on the case, Ira Reiner, predicted a not guilty verdict shortly after Johnny had made his opening statement. You did not have to see the jurors to know they were hanging on to every word and gesture.
Whether as a prosecutor or defense attorney, Johnny Cochran was devoted to the cause of his clients. He was a consummate trial lawyer and a warm and engaging human being. Professor Gerald Uelman is reputed to have authored the famous quote: "If it doesn't fit, you must acquit." I would add the less pithy, " Johnny's the lawyer with passion and fire. Johnny's the lawyer I most admire."

Perceptions-Castles of Sand or Stone

2005-03-21T14:40:00.000-08:00

For many years now I have had this suspicion that things are not what they seem to be. This troubling suspicion I had stuffed in some out of the way corner of my mind. How silly of me. Once an idea is in your mind, the “out of sight, out of mind” theory falters. It is just as well. A healthy skepticism that stops short of cynicism is a judge’s indispensable attribute.
I have had cause recently to pull my suspicion out of its dusty corner, shake it out, and hang it like a tapestry in a more prominent spot in my modest but cluttered quarters. On sunny mornings when I crave the chirping of birds over the inexorable beat of techno rock that invariably accompanies my workout at the local gym, I jog on a variety of routes in and around my neighborhood.
On occasion my jog takes me to a little street and a lovely Spanish style house and its adjacent enchanted garden. In the garden, which extends from the back of the lot to the sidewalk, are windmills, ponds, fountains, gnomes, toads, toadstools, and I believe an old edition of Shepard’s citations. The house is slightly set back from the street and occupies the other half of the lot. The entrance juts out toward the street in a short L. Three Mexican tile steps take you to the tastefully tiled front porch which serves as an entryway to the front door. On the second step sits an extremely English bulldog guarding the house and garden with unwavering vigilance. Even though I know that he, the toads and gnomes share the same unchanging universe, I expect him to come bounding down the steps toward me. I silently tip my hat to the artist who made such a realistic creation.
I had a cat, now deceased. My secretary Val asked for a photo of him. She gave the photo to an artist who painted a perfect likeness of my cat on a smooth large rock which she gave me as a birthday present. My cat lolls around my chambers and keeps me company while I work. Most of the time I know he is not real. Please don't scoff. I know of people who have given their pets the pathetic appearance of immortality through the services of a taxidermist. There is no comparison between a stuffed pet and a pet rock. But this bulldog looks real, I mean like a real bulldog. He even has a real collar around his neck.
So the other day I jogged to take another look at my enchanted garden , and to my horror saw that the house was up for sale, and that many of the gnomes and toads were gone. The “nothing lasts forever” perception began tugging at my heart. No comfort there. Not wanting to dwell on the loss, I began my jog again, but then for a moment my sprits were buoyed. Out of the corner of my eye I glimpsed the stalwart English Bulldog. I turned around to see my old friend. There he was at a new post, this time at the top of the stairs, guarding the house.
I stopped to gaze. I could almost swear the bulldog was looking at me. Did I see his head move ever so slightly? I got closer. So did the bulldog. He took a few steps forward so that he was just at the edge of the top step. He was growling and baring his teeth. I was taken aback more by surprise than fear that the bulldog could outrun me. Just moments earlier I could have sworn he was not a real bulldog, precisely because the figurine I had seen so many times looked so real.
This unnerving experience prompted me to question my perceptions about other things, including legal issues. The other evening I saw my friend, law professor Herbert Morris, at a lecture. He told me about how affected he was by “extraordinary rendition.” I thought he was talking about Coleman Hawkins rendition of Body and Soul.
My perception quickly changed when I learned he was speaking about the name of a program our country uses to extradite terrorists to other countries not averse to using torture as a method of interrogation. Revelations about this program appear in the February 14th edition of The New Yorker in a story by Jane Mayer entitled "Outsourcing Terror."
It is true we live in extraordinary times that may call for what the Bush administration terms "new methods of engagement." But this method of dealing with certain suspects is not what one would perceive as conceivable in the United States, particularly when we are seeking to spread democratic ideals throughout the world. It is contrary and antithetical to the rule of law upon which our democracy depends. The arguments in support of this disgraceful practice are unpersuasive. I have considered the other point of view, but my perception that this is the wrong way to bring terrorists to justice has not changed.
Nevertheless, we must guard against holding on to our perceptions of issues with unyielding tenacity. When we build barricades against the assault of other people's perceptions which challenge what we hold dear, we close the door to tolerance, reasoned debate, and principled compromise, attributes that are congenial for everyone, not just elected officials and judges.
The recent concurring opinion by Justice Brown in People v. Young 2005 DAR 1209 challenges perceptions about whether black women are a cognizable class in jury selection. Her outspoken views prompted a News Analysis article by Peter Blumberg in the Los Angeles Daily Journal Feb. 4th 2005.
Justice Brown wrote the opinion affirming the death penalty for defendant Young. What is noteworthy is the concurring opinion also by Justice Brown in which she calls into question the decision in People v. Motton (1985) 39 Cal.3d 596. Motton holds that for purposes of deciding bias toward groups in jury selection, black women jurors are a cognizable group. In her concurring opinion in Young, Justice Brown expresses concern with the “endless proliferation of cognizable groups” and sub-groups. She acknowledges that “Black women might be the victims of a unique type of group discrimination justifying their designation as a cognizable group…", but she could find no evidentiary basis for the court to have made that judicial finding in Motton.
Many assume, as did the Motton court, that Black women have long been a group subject to discrimination in jury selection. But Justice Brown’s perception is far different. She posits that the Motton court creates a “pernicious stereotype” that it then pretends to destroy. Does the Motten court accurately portray Black women as a group sharing a similar perspective in attitudes, ideas and experience, or does it demean that group through an unwarranted assumption?
I was struck by the differing perceptions of Brown's points expressed in Blumberg's article and elsewhere. Some argue that Justice Brown, a black woman is insensitive to a class that suffers discrimination, while others argue her views reflect acute sensitivity to the issue. However one views the issue, Justice Brown’s concurring opinion sets the stage for a reasoned discussion which could lighten the weight of some perceptions that had previously been anchored in assurance.
Edward Albee’s recent play, “The Goat or Who is Sylvia?" I doubt one will find on Jerry Falwell’s must-see list. It’s about a man who falls in love with a goat. The play serves as a metaphor for how a radical change of view or behavior upsets settled views. To some it can be so shattering, so devastating that it permanently changes established relationships, and leads to hostility and violence. It's not easy finding common ground and often not possible. But an attempt to understand how others perceive things so differently than we do is a step in the direction of a more harmonious society.
A number of years ago I attended a judicial conference at the University of Kansas. One evening the attendees had dinner at a nearby hotel where a taxidermist convention was in progress. You might not find such a convention at the Biltmore in Los Angeles, but I swear to you there was one in Lawrence Kansas at the Holiday Inn. Justice Brown will back me up on this because she and I were dinner companions. After dessert we strolled through the cavernous hall where the convention exhibits were displayed. There were booths where one could purchase a taxidermist kit. I bought one in the hope I could preserve my opinions that had been depublished by the Supreme Court. I recall someone hawking his services to preserve forever your pet bird, dog, horse or hamster. I wondered whether the people who buy into this creepy preservation actually perceive they are keeping their pet.
After observing a stuffed horse, Justice Brown and I shied away from an extended conversation about taxidermy. I suspect our perceptions were the same.