Wednesday, August 20, 2014

Almost The Truth

     To repeat what I have often said, we judges and lawyers are storytellers.  Every lawsuit, every judicial opinion involves a story.  One of the best is found in the short opening paragraph in Palsgraf v. The Long Island Railroad Company, 248 N.Y. 339 (1928).  Plaintiff Palsgraf is waiting on the platform of defendant’s station for the train to Rockaway Beach.  She is injured when scales fall on her.
         A train bound for a destination other than Rockaway Beach is pulling away from the station.  Two men are running along the platform to reach the train.  One of them jumps aboard without mishap.  The other man carrying a small package also succeeds in getting on board, but with a helping hand from a guard on the train, and a push from behind from the guard on the platform.  The small package contains "fireworks" and is “dislodged.”  When it falls on the rails, it explodes.
         The shock from the explosion causes the scales at the other end of the platform to fall on the hapless Ms. Palsgraf.  (The prescient Judge Benjamin Cardozo chose the neutral "plaintiff" rather than "Mrs." as the appellation.)
         Cardozo’s elegant writing aside, how could the fireworks explode if they were not lit?  When I was a kid, a long, long time ago, I went to Chinatown with my father in early July and we bought "fireworks."  This included firecrackers, rockets, pinwheels and sparklers.  The purchase in a back alley may have constituted a "transgression" of the Penal Code.  (I guess the Palsgraf case has put me in a 1920’s frame of mind.  In Palsgraf, the reader will be charmed by such words as "valise.")  As my dad and I got into our 1950 Plymouth, I dropped the package of fireworks.  And guess what?  They did not explode.  O.K.  I was not running to catch a train, but still.  
         This takes me to my thesis about stories.  The story that is first told to the lawyer by the client becomes a story told to a judge and sometimes a jury in a trial court.  And that story may be transformed into stories written in briefs, which become a story in an appellate opinion, and may even become a story told in the United States Supreme Court reports.  But these stories are not truly true stories.  Don’t get me wrong.  I am not suggesting anyone is lying.  But reconstructing facts remembered or imagined in the past does not shine a light on the unadorned truth.  Most of our stories in law or elsewhere are, at best, almost the truth.
         And that takes me to one of our country’s leading jurists, Judge Ruggero Aldisert.  In two weeks, at the age of 94, he will retire as Judge Emeritus of the U.S. Court of Appeals for the Third Circuit, with jurisdiction extending over Pennsylvania, New Jersey, Delaware, and the Virgin islands.  During his brief judicial career, a mere 52 years or so (they go by quickly when you love your work), he has taught me and countless other judges throughout the country and the world how to be the best at what we do.  How successful a student I have been I leave to others, but the six books he has authored have been invaluable to me and my colleagues throughout the country.  They are:  The Judicial Process: Text, Materials and Cases (2d ed. 1996) West Publishing Co.; Logic for Lawyers: A Guide to Clear Legal Thinking (3d ed. 1997) National Institute for Trial Advocacy; Winning on Appeal: Better Briefs and Oral Argument (2d ed. 2003) National Institute for Trial Advocacy; Road to the Robes: A Federal Judge Recollects Young Years & Early Times (2005) AuthorHouse; A Judge’s Advice: 50 Years on the Bench (2011) Carolina Academic Press; Opinion Writing (3d ed. 2012) Carolina Academic Press.  Add to this more than 50 law review articles and countless lectures to judges and lawyers throughout the world.
         But did I say six books?  Pardon the slip.  I just finished reading the seventh, Almost the Truth, A Novel of the Forties and the Sixties, published by AuthorHouse, 2014.  Drawing upon his experience as lawyer and judge and as a major in the U.S. Marines during World War II, Aldisert (here I refer to him as a fiction writer) has written a compelling narrative brimming with action, suspense, and intrigue that grabs the reader by the throat.  (Reviewer parlance.)  Not to worry, no spoilers here.
         Set during and after World War II, Aldisert’s story involves clandestine operations of the OSS during the Nazi occupation of Rome, and a trial that confronts and confounds us with an examination of what in fact is the truth.  The interplay between legal procedure and relevant facts forces us to acknowledge both the law's grandeur and its unavoidable limitations.
         When he took senior status in the mid-1980’s, Chief Judge Aldisert moved to Santa Barbara where he established chambers and took on a full case load.  I, along with several local judges, have had the privilege of knowing the venerable Rugi.  He has instructed me, as a friend, to address him as such.
         My favorite judge, Rugi, who hit a hole-in-one on the golf course last year, will be active as ever in retirement.  I suspect there will be more books and more holes-in-one to come.  I know and love Rugi.  But I assure you my review of Almost the Truth is completely objective.  That is the truth. 

A Storm of Ideas

Code of Civil Procedure section 170.6 allows a party or an attorney in a civil or criminal action in superior court to file a motion accompanied by an "affidavit of prejudice" to prevent a judge from deciding the case.  The moving party need only state, under penalty of perjury, that the judge is prejudiced against the party or attorney.  But the section does not require the recitation of facts to support the conclusion of prejudice.   Wait a second---this---oh my heavens---this permits the rejection of a judge for reasons other than a judge's prejudice… a rejection for any unstated reason whatsoever.  But that would be…. 
Enough.  Confession.  I committed perjury.  It happened in Department 1, the master calendar court of the Los Angeles County Superior Court, in 1965.  I was waiting for my first civil case to be sent out to a trial court.  The presiding judge was Donald Wright, who later became one of California's great chief justices. 
         Judge Wright called the list of cases to be assigned to trial court judges.  He called Chemerinsky v. Eastman.  The lawyers answered "ready" and he assigned the case to Judge Impossible (made up name).  The plaintiff's counsel said, "There will be an affidavit under 170.6, Your Honor."  Wright sent the case to another judge.  He then called the next case, Miller v. Star, and attorneys popped up from various parts of the cavernous Department 1 courtroom.  "Ready for plaintiffs and cross-defendants."  "Ready for defendants and cross-complainants Casner and Leach."  Judge Wright said, "This case will be sent to Judge Impossible."  In unison all the attorneys said, "There will be 170.6 affidavits, Your Honor."  This happened again in the next case called.  The attorneys drew straws to see who would file the affidavit of prejudice.    
And then Judge Wright called my case.  I answered "ready," even though I did not feel like I was.  He assigned me to Judge Impossible, and you will never guess what I said.  O.K., you guessed it.  "There will be an affidavit of prejudice under 170.6, Your Honor."  But I had never heard of Judge Impossible prior to the preceding few minutes.  Well, what would you have done?  Several experienced and respected trial attorneys in Department 1 filed affidavits.  There is no greater terror than the unknown.  I met that terror head on by avoiding it.  Under the circumstances, I felt it would be more foolhardy than courageous to take my case before Judge Impossible.  Lawyers must be highly tuned to the world about them.  They are often involved in contentious battles where the outcome is uncertain.  Success, even survival, depends on recognizing and confronting the unpleasant vicissitudes of daily life.    
I wonder how today's students can persevere in the world where as adults they must face unpleasant challenges.  In my column last month, I spoke of students demanding that their professors give them advance warning about works of art or literature that discuss possible offensive themes.  What if these students become lawyers?  They might petition courts to issue warnings before a decision:  "Caution.  This judgment may contain language offensive to the losing party.  Words such as 'damages', 'sanctions,' and 'untenable' appear with some frequency." 
Students at some universities are closing their minds to the world of ideas by objecting to commencement speakers they find objectionable.  We have all read about International Monetary Fund official Christine Lagarde, former Secretary of State Condoleezza Rice, and former UC Berkeley Chancellor Robert Birgeneau cancelling their university graduation speeches because of student protests.  Matt Pearce recently wrote about this phenomena in the Los Angeles Times.  He quoted columnist Michelle Goldberg who in The Nation termed such student protests as "left-wing anti-liberalism."  
Daily Journal columnist Julie L. Kessler, in her insightful column titled "The speech that never was" (June 4, 2014), argues that a vocal but small group of students "possess a frightening lack of tolerance."  Kessler is concerned about this narrow view of "enlightened intolerance."  So am I.  What if these students become future lawyers? 
I had similar worries in a column I wrote in 1991 titled "Freedom to express all points of view."  I wrote about a moot court competition at the law school at New York University.  So did the historian, columnist, and critic Nat Hentoff whom I referred to in my column.  I hope it is not immodest to quote myself.
"The presence of self-appointed enforcers to compel the expression of the politically correct point of view can have a devastating effect on the law profession.
         "Hentoff expressed his regret about the refusal of some law students at N.Y.U. to participate in moot court competition. They balked when given the assignment to argue against the petition of a lesbian couple seeking custody of a child.  The students thought it offensive to deny the lesbian couple custody because of their sexual preference. Of course it is. That's why we need lawyers. They are there to protect all points of view, however offensive. The Bill of Rights was enacted just so that politically incorrect points of view could be expressed.
         "If lawyers become intimidated by the enforcers of correct thought, then we are in big trouble. The students who refused to participate in the moot court competition because they disagreed with the principle they were assigned to argue, unwittingly sabotaged the very principles they professed to support.  When certainty of the correctness of your position causes you to silence the opposition, you have undermined your own position. You have become like your enemy.
         "If lawyers forget this, we will ultimately have a society where ideas are crimes. Fahrenheit 451, Brave New World, and 1984 will have been written in vain.
         "Those who fight for minority rights, whether they be the rights of gays, blacks, Jews, women, or atheists, should be particularly sensitive to preserving the right of others to be heard, no matter how loathsome the point of view.
"By allowing the free expression of bad and even offensive ideas, we insure that good ideas flourish. It is this way that we preserve the American freedom of mind and spirit. It's something law students must learn, and lawyers must never forget."
Hentoff wrote in-depth about free speech and quoted portions of my column in his book Free Speech for Me, But Not for Thee.  How the American Left and Right Relentlessly Censor Each Other (Harper Collins, 1992).   
But what about the perjury engendered by Code of Civil Procedure section 170.6?  Poor drafting.  A storm of ideas is a good thing.  Not to be confused with the gigantic storm that, by the time you read this column, may have become a hurricane named Arthur that ravaged the East Coast this past weekend.  Just for the record, it's not my fault.  I declare under penalty of perjury that I had nothing to do with it.

Thursday, June 05, 2014


A Secret Purchase in Paris
         Dateline:  Paris 1960.  Your correspondent, moi (this is Paris, France, not Paris, Lamar County, Texas), wanders into a bookstore on the Rive Gauche.  He purchases a copy of Henry Miller's "Tropic of Cancer," a book outlawed in the U.S.  The people who run HBO were not yet born.  Puerile youngster correspondent wraps the book in plain brown paper (not a bag) and packs it in the bottom of his suitcase under his underwear.  Despite the absence of salacious or enticing blurbs on the cover or lurid descriptions in essays about Miller's literary oeuvre, the allure at that time to own a copy of "Tropic of Cancer" was simply that it was banned. 
         Your correspondent did not purchase James Joyce's "Ulysses" in the bookstore.  Why would he?  In 1933, "Ulysses" was no longer banned in the U.S.  District Court Judge John M. Woolsey, in a decision that reflected thoughtful legal analysis and discerning literary criticism, ruled that "Ulysses" was not obscene.  I urge you to read the entire decision.  (U.S. v. One Book Called "Ulysses" 5 F.Supp. 182 (S.D.N.Y. 1933).)  Here are some passages:  
         "I have read 'Ulysses' once in its entirety and I have read those passages of which the Government particularly complains several times.  In fact, for many weeks, my spare time has been devoted to the consideration of the decision which my duty would require me to make in this matter.
         "'Ulysses' is not an easy book to read or to understand. But there has been much written about it, and in order properly to approach the consideration of it is advisable to read a number of other books which have now become its satellites.  The study of 'Ulysses' is, therefore, a heavy task.
         "The reputation of 'Ulysses' in the literary world, however, warranted my taking such time as was necessary to enable me to satisfy myself as to the intent with which the book was written, for, of course, in any case where a book is claimed to be obscene it must first be determined, whether the intent with which it was written was what is called, according to the usual phrase, pornographic, — that is, written for the purpose of exploiting obscenity. [¶] …
         "In writing 'Ulysses,' Joyce sought to make a serious experiment in a new, if not wholly novel, literary genre.  He takes persons of the lower middle class living in Dublin in 1904 and seeks not only to describe what they did on a certain day early in June of that year as they went about the City bent on their usual occupations, but also to tell what many of them thought about the while.
         "Joyce has attempted — it seems to me, with astonishing success — to show how the screen of consciousness with its ever-shifting kaleidoscopic impressions carries, as it were on a plastic palimpsest, not only what is in the focus of each man's observation of the actual things about him, but also in a penumbral zone residua of past impressions, some recent and some drawn up by association from the domain of the subconscious. He shows how each of these impressions affects the life and behavior of the character which he is describing.
         "What he seeks to get is not unlike the result of a double or, if that is possible, a multiple exposure on a cinema film which would give a clear foreground with a background visible but somewhat blurred and out of focus in varying degrees.
         "To convey by words an effect which obviously lends itself more appropriately to a graphic technique, accounts, it seems to me, for much of the obscurity which meets a reader of 'Ulysses.' And it also explains another aspect of the book, which I have further to consider, namely, Joyce's sincerity and his honest effort to show exactly how the minds of his characters operate.
         "If Joyce did not attempt to be honest in developing the technique which he has adopted in 'Ulysses' the result would be psychologically misleading and thus unfaithful to his chosen technique.  Such an attitude would be artistically inexcusable. [¶] …
         "'Ulysses' may, therefore, be admitted into the United States."  (PP. 183-185.)
United States District Judge
The U.S. 2nd Circuit Court of Appeals affirmed.  I trust the appellate panel read "Ulysses" with the care given by Judge Woolsey. 
One particular paragraph of Judge Woolsey's decision caught my attention in light of certain phenomena occurring on college campuses. 
         It has been reported that students are requesting their professors to post warnings about potentially offensive works of literature they have been assigned to read.  This caught me by surprise.  Literature is still taught in universities?  In kindergarten, kids with pushy parents are planning their careers in scientific, technical and business fields, in the hope of making a living.  But for the literature courses offered, I can see on the cover of "Hamlet":  "Warning!  Contains scenes of violence, poisoning, murder and mayhem."  "Pride and Prejudice":  "Warning!  Contains refined language, exemplary grammar, and cultivated manners." 
         Judge Woolsey's penultimate paragraph would be a good warning for "Ulysses."  Woolsey wrote:  "I am quite aware that owing to some of its scenes 'Ulysses' is a rather strong draught to ask some sensitive, though normal, persons to take.  But my considered opinion, after long reflection, is that whilst in many places the effect of 'Ulysses' on the reader undoubtedly is somewhat emetic, nowhere does it tend to be an aphrodisiac."  (P. 185.) 
         Students with queasy stomachs could take Pepto-Bismol before diving into "Ulysses." 
         How ironic that with more freedom of expression some students seek to curb freedom of expression.  Literature goads us into thinking about the human condition, our culture and the world.  It may and often does make us uncomfortable and it challenges us to question our prejudices and preconceptions.  It gives us insight, makes us more complete human beings, and enables us to better excel in all our endeavors.
And this takes me back to the "Tropic of Cancer" and other writings of Henry Miller.  There is much to admire in his works.  But his writing can be rambling, and I do not care for his demeaning portrayals of women.  That does not mean he should not be read.  His graphic descriptions, in fact, could compel readers to champion equality for women.  By happenstance, I came to know a few of Miller's women friends, including his ex-wife.  They all spoke of him with such tenderness and affection.  Apparently women fared better in his real life than they did in his novels.
It was not until 1964, the year I was admitted to practice law in California, that the U.S. Supreme Court ruled "Tropic of Cancer" was not obscene.  But four years earlier, your correspondent and his copy of "Tropic of Cancer" got through customs.  And then I attended law school.  When I tired of reading "Williston on Contracts," I read a chapter or two of "Tropic of Cancer."  More lively than promissory estoppel.
Postscript.  A favor:  If the statute of limitations has not run, please keep the incident about my purchase in Paris under your hat. 

Monday, May 05, 2014

Taming Chaos

         I was reading some U.S. Supreme Court opinions the other day (an occupational hazard).  Oddly enough, I began thinking about chaos.  Funny how one endeavor can prompt one to think of something completely unrelated.  On second thought, my first thought may be an example of just the opposite. 
         But whatever one thinks about the merit of any judicial opinion, or lawyer's brief, for that matter, the enterprise involves the same goal ‑‑ bringing order out of chaos. 
         A lawyer I knew, who passed away several years ago, was a workaholic who wrote briefs that sparkled with clarity.  Even when the law was against him and the mélange of facts fought against the creation of a coherent narrative, he could write a brief that was lucid and compelled the reader to seriously think about the merits of his argument.  He expressed regret that the law was so demanding that he could not devote enough time to appreciate the arts.  I am not sure he was aware of it, but it occurred to me that he was in fact an artist. 
         This revelation came to me during a three-hour lunch I had with two premier lawyers who are also award-winning photographers, Irving Greines and Eric Lawton. 
         Greines is a well known and leading appellate specialist.  His photographic work has been exhibited in shows and is held in permanent collections in museums, galleries and universities throughout the U.S.  He has been published in leading photographic journals and magazines.
         Lawton is a seasoned litigator who represents businesses and individuals in the resolution of complex civil litigation.  His work has been exhibited in galleries, private, and public collections throughout the U.S., Asia and Europe, that include the New York Public Library and the Bibliothѐque Nationale in Paris.  His books of photographs include The Soul of the World (Harper Collins) and The Soul Aflame (Conari Press).
It may not seem obvious at first glance, but the compelling artistic works of Greines and Lawton share some of the attributes one finds in the work of the lawyer who produces a persuasive brief or argument.  But of course little is obvious at first glance.  One has to quiet the mind and look deeply into the circumstances that precede the inspiration and labor that go into the creation of the work.
          Lawyers and judges must create a reasoned and coherent construct out of chaos.  Yes, lawyers have been known to create chaos.  And the same can be said of judges now and then.  (Readers at their discretion may eliminate "now and then" and are free to refer back to the first paragraph of this column.)  In most cases our critical faculties lead us to recognize that the task of lawyers, judges and artists is often the same:  to guide us through the world's bewildering maelstrom.
I have argued in the past that certainty and predictability, the objectives we strive to achieve in the legal profession, are mostly illusory. We do our best to bring meaning and predictability to the law, but the different perspectives we see in judicial opinions belie such notions. 
In large part we humans create chaos.  Just ask Blaise Pascal, the 17th century French mathematician and philosopher.  In his Lettres Provinciales, he says, "What a chimera then is man!  What a novelty!  What a monster, what a chaos, what a contradiction, what a prodigy!  Judge of all things, feeble earthworm, depository of truth, a sink of uncertainty and error, the glory and the shame of the universe."
         No need to be depressed about this deplorable state of things.  It is simply the way things are.  In fact, this chaos is the spur to human excellence, to artistic creation.  Henry Adams, in his eponymous work, The Education of Henry Adams, said, "Chaos often breeds life, when order breeds habit."  I think that means chaos is good.  Something creative comes out of it. 
         One of Greines' first shows, which I attended, was provocatively entitled "Chaos Transformed," a goal both artists and lawyers strive to achieve.  Greines and Lawton pick out of a mass of information that which is necessary to make their visual statement.  The task is similar to the lawyer who must consider a hodgepodge of facts, and other information, including statutes and case law and make sense of it all.  It is an undertaking that transforms chaos into a "creation" that will produce clarity or insight for the reader or viewer.  Lawton notes the parallel between law and his art:  "Be it a legal problem or a visual subject, I'm presented with a world in chaos."  Whether it be the "art of law" or the "art of photography," Lawton looks to "discern the underlying theme ‑‑ to find the story and express it in a clear, compelling way."
Of course there are differences between the brief writer and the photographer.  Photographic art often presents a challenge to the viewer who must thoughtfully consider and ponder its significance.  Different viewers can derive insights different from one another and from the artist.  The brief writer, on the other hand, strives for a common understanding for all readers.  Yet, both lawyers and artists create in their own special way a sense of order and meaning.  Lawton approaches his work from all angles and senses when he can trust his judgment to capture the scene and the "elegance of simplicity." 
Greines finds beauty in blighted areas that people avoid, or walk though quickly.  He confines his photographs within a "defined space" so that the viewer can focus on the subject and find its own particular beauty. The good artist and the good lawyer often find gems in unexpected places.  In his appellate practice, Greines takes a similar approach.  He arranges facts and legal principles in a brief that will attract the reader.
Artists and lawyers helped create civilization.  Many in the public criticized the legal profession because so many lawyers were involved in the Watergate scandal.  Yet it was lawyers who brought the miscreants to justice.  The oft-repeated quote from Shakespeare's Henry VI, Part II, "First thing we do, let's kill all the lawyers," is not an indictment of lawyers.  It is a call from a butcher in a mob of angry citizens to overthrow the government and create havoc, disorder and chaos.  This call for anarchy is a tacit recognition that our legal institutions and its lawyers are necessary to preserve an ordered society.  No wonder the bailiff calls for "order in the court."
         I cannot even try to do justice (pardon the expression) to the body of work produced by Greines and Lawton by describing particular photos.  Nor could I do the same with a well-crafted brief or judicial opinion.  The unique vision that Greines and Lawton express in their photography compels the viewer to do more than merely look, but to think and participate in an act of creation.  Check out their work at their respective websites:;;  Think about what they say in their work.  And I guarantee you will write a better brief and of course be a better lawyer.
         Artists like Greines and Lawton challenge our way of thinking and take us into unexplored areas to find meaning in a chaotic world.  So do lawyers.  Look and you shall see.  The effort to make sense of a disordered world makes us all artists.  We may not always achieve it, but we can meet Pascal's challenge and be the depository of truth and "the glory," not the shame, "of the universe."