Wednesday, July 05, 2017


     In last month’s column FACTS ARE, I posited that the plural noun “facts,” or for that matter “fact” in the singular, must not be preceded by the adjective “true” or “false.”  Those adjectives are either redundant as in the case of “true facts” or contradictory as in the case of “false facts.”  But depending upon a writer’s skill and judgment, appropriate adjectives may precede “facts.”  A few come to mind:  “astonishing,” “shocking,” “breathtaking,” “remarkable,” and “grotesque.” 
          And when not sure how much credence to place in unrefuted or unsettled facts, which by their very nature may seem questionable, certain adjectives that come close to “false” may be appropriate.  “Questionable, “problematic,” “dubious,” “doubtful,” and even “incredible” come to mind.  
          Lawyers, judges and juries deal with this dilemma all the time.  They must decide what are the facts.  And once those facts are established, they are the facts, unless some judge or appellate court finds them “unbelievable” and decides to do something about it.  But what do they know? 
          Now let’s move on to illustrate facts dressed up with falsities to color or mischaracterize the context or the setting in which the irrefutable facts occur.
Example in point‑‑the unpublished opinion of Lester Knispel, as Trustee, etc., Plaintiffs and Respondents, v. Michael Scott Shore, Defendant and Appellant (June 9, 2017, B270450, Los Angeles County).  The problem does not occur in appellant’s apparently accurate presentation of the facts to the appellate court.  To quote from the opinion:
          “Appellant Michael Scott Shore seeks to set aside a judgment confirming an arbitration award issued by Judge Aviva K. Bobb (Ret.) on the ground that Judge Bobb failed to disclose she and Respondents’ attorney, Marc L. Sallus, were members of the Los Angeles Lawyers Philharmonic Group together.  We affirm the judgment.  [In a footnote the court stated that the dispute decided in the arbitration was irrelevant to the issue on appeal.]  [¶] …
          “On October 1, 2014, Appellant filed his opposition, contending the arbitrator failed to make timely disclosures to him about having previously served as an arbitrator or mediator with Sallus’ law firm on over forty occasions in the past three years.  Further, Appellant argued Judge Bobb failed to disclose at any time the fact that she and Sallus had both been members of the Lawyers Philharmonic, for which they ‘have been practicing and performing together … since at least November 2010.’  According to Appellant, he would not have selected Judge Bobb and would have objected to her appointment if he or his counsel had known of this purportedly close personal contact.  He only discovered this fact from ‘a friend’ in September 2014, after the arbitration award had been issued.
          “Respondents presented Sallus’ declaration in support of their petition, which stated he played trombone and baritone (a smaller version of a tuba) in the Lawyers Philharmonic.  The Lawyers Philharmonic is comprised of approximately 150 to 175 musicians who are lawyers, judges, justices, paralegals and others involved in the practice of law and it performs three or four times a year.  Judge Bobb also submitted a declaration which explained her role in the group; she played the violin, but she had not been a part of the group for about a year.  Both Sallus and Judge Bobb affirmed that ‘string’ players had little contact with ‘brass’ players and there was no opportunity during rehearsal or performance for them to communicate.  The only interaction either of them had with one another while they were members of the Philharmonic was if they ran into each other, they would exchange basic pleasantries.
          “The trial court granted the petition to confirm the arbitration award.  In connection with its ruling, it found, in pertinent part, ‘that Judge Bobb (a violin player) and Mr. Sallus (who plays the trombone) both played in the Los Angeles Lawyers Philharmonic.  The Court further finds there is zero evidence of any personal relationship between Judge Bobb and Mr. Sallus, and consequently, there was no need to disclose participation in the Philharmonic.  The Court specifically finds the Declarations of Marc L. Sallus and the Hon. Aviva K. Bobb, Ret. to be persuasive.  Both Declarations establish that the contact between Mr. Sallus and Judge Bobb was minimal at most, and that they did not interact with each other at all, other than to exchange pleasantries every once in awhile.’”
Pardon the parenthetical aside, but if musicians were hearing the case, they might have taken judicial notice that it is rare for string and brass players to fraternize.  Why would they?  Well, to be fair, I suppose trombone players and viola players are likely to hang out together.  Note, I said viola players, not first string violinists. 
I draw this inference, because trombonists and violists are the butt of cruel, ill-founded jokes.  For example:  What do you call a guy who knows how to play a trombone and doesn’t?  A gentleman.  What is the best kind of trombone? A broken one. Why is a dead snake in the road more tragic than a dead trombonist in the road?  There are skid marks in front of the snake.
I could go on, but common decency prevents me.  So I will turn to a few disparaging viola jokes.  How do you keep your violin from being stolen?  Put it in a viola case.  What is the difference between a viola and a trampoline?  You take your shoes off to jump on a trampoline.  What is the difference between a viola and an onion?  No one cries when you cut up a viola.  And, finally, how do you get two violists to play in tune with each other?  Ask one to leave. 
          But let us get back to our theme of adding falsity to established facts.  I learned that at oral argument appellate counsel made an appalling misrepresentation to the court.  When I was told about the enormity of the falsehood, I couldn’t believe it, despite the high credibility of my confidential sources.  I therefore was able to obtain a recording of the oral argument and heard it with my own disbelieving ears.  Appellant’s counsel represented to the court that the Los Angeles Lawyers Philharmonic was a punk rock band.  Even the court was incredulous.  Presiding Justice Bigelow did point out, as I recall, that the Los Angeles Lawyers Philharmonic is a symphony orchestra.  The unflappable conductor of the orchestra Gary Greene thought the characterization was amusing.  I can’t say the same for Beethoven, Sibelius, Elgar, and Tchaikovsky. 
          I end with full disclosures.
          Disclosure #1.  I am a judge and I have reviewed facts that have strained my credulity but, as far as I can remember, never have I reversed a case on that ground. 

          Disclosure #2.  I know Marc Sallus.  He and I also are members of the Big Band of Barristers in which he plays trombone and baritone.  The latter instrument I would characterize as a tuba with a vitamin deficiency.  We often speak to one another. That is because the piano is not a string instrument in the same sense as a violin or a viola.  I consider Sallus a friend.  But after the trombone jokes, that may be an unwarranted assumption.


          For what noun are the adjectives “true” and “false” misleading?  Facts.  Facts are.  That is why “true” is redundant to describe facts.  When lawyers and judges use the phrase “true facts,” it drives me nuts.  Facts are.  Sorry to be repetitive.  And “false” facts are not facts.  So why call them facts?  And I refuse to discuss “alternate” facts.  Such facts may exist in an alternate universe but not here. 
          Of course we can get facts wrong.  But so-called wrong facts are not facts.  Whether promulgated by intention or negligence, they are imaginary… trumped up.  Unlike facts that are, they aren’t.  Example ‑ I attended a concert at Disney Hall last week.  One of the selections was Igor Stravinsky’s “Requiem Canticles.”  In the slick performances magazine (small “p” and in italics), given to concert goers, is a “composer profile” of Igor Stravinsky:  “Born:  1875, Ciboure, France.  Died:  1937, Paris, France.” 
False.  Those so-called facts are not the facts.  I can prove it.  I wasn’t around when Stravinsky was born, but all authoritative texts say he was born in Russia in June of 1882.  Paris is where he composed many of his compositions and, if you believe what is represented in the movie Coco Chanel & Igor Stravinsky, Paris is where he is reputed to have had an adulterous love affair with the celebrated fashion designer Coco Chanel.  Note:  Unlike the descriptions to publicize the movie, I avoided the adjective “passionate” to describe the love affair.  To so characterize a love affair that may never have happened would be contrary to the spirit and theme of this column and would, as they say, “be playing fast and loose” with the facts.  And even if the illicit love affair happened, how do we know this particular one was passionate?  On second thought, aren’t all illicit love affairs passionate?  Why else would anyone have one? 
But back to verifiable facts about Stravinsky.  I know for sure he did not die in 1937.  I saw him and Robert Craft conduct a concert of Stravinsky’s music at UCLA’s Royce Hall in 1957, a celebration of Stravinsky’s 75th birthday.  And I have a witness.  Prominent lawyer Andrea Ordin was at the concert, sitting next to me.  The astute reader will have concluded that she had not yet gone to law school.  Stravinsky died in New York in 1971.  By the way, it was Maurice Ravel who was born in 1875 in Ciboure, France, and died in 1937 in Paris. 
So should we pillory the author of the article who got his or her facts wrong?  Sure.  Why not?  It happens to me all the time.  But I am unable to do so here because the author of Stravinsky’s profile is not named.  Should we then lay blame on editors of the magazine published by the Southern California Media Group for a gaffe they didn’t catch?  Maybe so.  Editors must ensure accurate reporting in their publications.  But are editors responsible for inaccuracies in opinion pieces?  That is another story.
This takes me to an article that appeared in the Daily Journal a couple of weeks ago titled, in bold print, “A Waste of Limited Judicial Resources” by Jonathan Goldstein (May 11, 2017).  The article appears under the rubric “PERSPECTIVE.”  So at least we know the article is Goldstein’s perspective.  One such perspective is enough.
Above the photograph of his stern visage is a brief curriculum vitae in italics.  It tells us that besides being a judge pro tem in various counties throughout California, he is “the only attorney appointed by the State Bar to serve as a special master in every county in California.”  And he has “clerked for a former State Supreme Court Presiding Justice.”  Must have been in some other state.  We don’t have a presiding justice in our Supreme Court.  We do have a Chief Justice.
In his article, Mr. Goldstein severely criticizes a panel of justices in the 2nd District for publishing an opinion that he concedes was correctly decided.  He chides the justices for deciding “to brief and hear argument” in the case and suggests the court should have simply denied the appeal. 
          Mr. Goldstein you are a “special master.”  You should have mastered your subject matter.  In California, the right to appeal a criminal conviction is statutory.  (Pen. Code, §§ 1235, 1237; Douglas v. California (1963) 372 U.S. 353, 356; People v. Vargas (1993) 13 Cal.App.4th 1653, 1659.)  The initial appeal of a felony conviction to the California Court of Appeal is a matter of right, with further review being discretionary.  (Douglas, at p. 356.)  It is not the judiciary that is “the butt of jokes.”
          So do we blame the editors of the Daily Journal for publishing Mr. Goldstein’s novel perspective?  Of course not.  Above Mr. Goldstein’s photograph appears this disclaimer:  “The opinions in this article are strictly his own.”  Let’s hope so.

          Oh, I almost forgot.  Disclosure.  I have been a columnist for the Daily Journal for 29 years, and my views are strictly my own. 

Monday, May 15, 2017

Pardon The Interruption

     A recent article in the New York Times by Adam Liptak reported on a 15-year study concerning oral argument at the United States Supreme Court.  The study, soon to be published in the Virginia Law Review, was conducted by law professor Tonja Jacobi and law student Dylan Schweers, both from Northwestern University.  They conclude that so-called “conservative justices interrupt liberal justices at significantly higher rates than liberal justices interrupt conservatives.”  And I guess conservative justices interrupt their conservative colleagues less often than they interrupt their liberal colleagues.  For the sake of discussion, I suppose these easy labels have a measure of legitimacy. 
         What a revelation.  I thought this interrupting phenomenon as it occurs in the general public was the other way around.  At least that was my impression when I was a law student at Berkeley in the sixties.  I and all my like-minded liberal friends spent most of our time interrupting one another.  I soon discovered that this practice did not foster learning.  When bullhorns made their appearance on the Berkeley campus, I began losing my hearing and my mind.  The din foreclosed reasoned discourse.  The Free Speech Movement restrained my speech.  The cost was so high, it drove me out of Berkeley.
         Professor Jacobi told the Times that “interruptions are generally considered an aspect of dominance, and the conservatives feel dominant over the liberals.”  Jacobi points out that “conservatives have dominated the court for the past 50 years.”  Looking back at the court some 60 or so years ago, I wonder if Justices Warren, Black, Douglas, Brennan, and Marshall interrupted their less liberal colleagues more than the other way around.
         Jacobi and Schweers land another shocker in the April 11, 2017 edition of the Harvard Business Review.  Reader discretion advised:  “[M]ale justices interrupt female justices approximately three times as often as they interrupt each other during oral arguments.”  The study covered not just the current Supreme Court, but the court in 1990, when Sandra Day O’Connor was the only woman on the court.  The court’s practice then, and in 2002 and 2015, reflects a pattern of male justices consistently interrupting female justices at a far higher rate than they interrupt their male counterparts.  And as the years progress and the number of female justices increases, so too have the number of interruptions by male justices. 
         The authors believe that Justice Gorsuch will fall within the current pattern based on his senate hearings.  The authors write: “He could not help repeatedly interrupting the liberal female senators.” 
         Speaking of Justice Gorsuch, his name came up during a casual conversation at the El Tovar Hotel at the Grand Canyon this past January.  I was having dinner in a private dining room with the singing group “Singers In Law.”  We were celebrating the birthday of attorney and singer Linda Hurevitz who came up with the catchy title.  The other members of the singing group are attorneys John Blumberg, Ken Freundlich, and Barbara Gilbert, who is not an attorney, but is married to a judge, and sometime ago was a court reporter.
         None of us knew it at the time, but the Singers In Law would sing the Star Spangled Banner before thousands of cheering fans at the L.A. Kings game at Staples Center on April 2nd.  Justice Gorsuch may have had something to do with it.  So while we were having dinner, Philip Anschutz, who has an ownership interest in the Kings, Staples Center, the El Tovar Hotel, and a few thousand other enterprises, walked in and said, “Excuse me, but did you know that Teddy Roosevelt once dined in this room?”  He then introduced himself.  We had a nice chat with him and his charming wife Nancy.  Our convivial conversation covered the history of the Grand Canyon.
         He asked me if I knew a good friend of his on the 10th Circuit, Judge Neil Gorsuch.  “Gorsuch? Mmm, don’t know him.”  Funny how quickly things change.  Anschutz asked about us, and there you have it. 
         The Star Spangled Banner is a tough song to sing, especially a cappella. The Singers In Law brought the house down.  And people of widely differing political beliefs cheered.  Might be a good foundation for reasoned discourse without interruptions.
         Enough wishful thinking.  Getting back to Justice Gorsuch.  After his senate hearings, I read the case for which he was given heat for his “cold” dissent, TransAm Trucking v. Admin. Review Bd., U.S. Dept. of Labor (2016) 833 F.3d 1206.  An employee was fired by his trucking company employer for disobeying an order of the employer.  The employee was transporting cargo in a tractor-trailer for his employer in the late evening hours “when the brakes on his trailer froze because of subzero temperatures.”  (P. 1208.)  At the employer’s direction, he waited several hours for help to arrive.  The heater in his cab was not working.  He fell asleep and then awakened when he received a phone call from his cousin.  His torso was numb and he could not feel his feet.  He called his employer who told him to either wait or “drag the trailer with its frozen brakes.”  (P. 1209.)  Instead, the employee “unhitched his truck from the trailer and drove away, leaving the trailer unattended.  He was terminated for abandoning the trailer.”  (P. 1208.)
         The majority agreed with the decision of the Administrative Law Judge and the Administrative Review Board of the Department of Labor that the driver was terminated in violation of the whistleblower provisions of the Surface Transportation Assistance Act.  The majority discussed relevant statutory definitions of “operate,” but also discussed provisions of 49 U.S.C. § 31105(a)(1)(B)(ii), which make it unlawful to discharge an employee who “‘refuses to operate a vehicle because . . . the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle's hazardous safety or security condition.’”  (P. 1211.)
    The dissent expressed another point of view.  Gorsuch wrote:           “A trucker was stranded on the side of the road, late at night, in cold weather, and his trailer brakes were stuck.  He called his company for help and someone there gave him two options.  He could drag the trailer carrying the company's goods to its destination (an illegal and maybe sarcastically offered option).  Or he could sit and wait for help to arrive (a legal if unpleasant option).  The trucker chose None of the Above, deciding instead to unhook the trailer and drive his truck to a gas station.  In response, his employer, TransAm, fired him for disobeying orders and abandoning its trailer and goods.
    “It might be fair to ask whether TransAm's decision was a wise or kind one.  But it's not our job to answer questions like that.  Our only task is to decide whether the decision was an illegal one.  The Department of Labor says that TransAm violated federal law, in particular 49 U.S.C. § 31105(a)(1)(B).  But that statute only forbids employers from firing employees who ‘refuse[] to operate a vehicle’ out of safety concerns.  And, of course, nothing like that happened here.  The trucker in this case wasn't fired for refusing to operate his vehicle.  Indeed, his employer gave him the very option the statute says it must:  once he voiced safety concerns, TransAm expressly -- and by everyone's admission -- permitted him to sit and remain where he was and wait for help.  The trucker was fired only after he declined the statutorily protected option (refuse to operate) and chose instead to operate his vehicle in a manner he thought wise but his employer did not.  And there's simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid.  Maybe the Department would like such a law, maybe someday Congress will adorn our federal statute books with such a law.  But it isn't there yet.  And it isn't our job to write one -- or to allow the Department to write one in Congress's place.”  (PP. 1215-1216.)

         I wonder if Judge Gorsuch interrupted his colleagues during oral argument. 

A Perfect Layup

     We all have favorites‑favorite office holders (fewer these days), favorite uncles and aunts, favorite judges (the most evanescent category), favorite judicial opinions.  Oh, I almost forgot, favorite columnists.  Let’s narrow the field to Daily Journal columnists‑all favorites. 
         Columnists cannot be sure who reads their column.  That is less the case when it comes to judicial opinions. Attorneys and judges on all courts are compelled to read them.  Readers can fume privately or publicly about the merits of the opinion, but generally they read under compulsion.  It’s different with columnists.  We may have what is called a “readership,” and we do get our share of emails or missives of praise or criticism.  The latter I try to handle with equanimity.
         When one is a columnist for a professional legal journal like the Daily Journal, one expects the readers to be in the field of law.  I mean how many entomologists read my column or any other column in the Daily Journal?  I have heard, however, from a few etymologists.  The experience was not all that pleasant.
         But one never knows.  Take basketball star Kobe Bryant, for example.  Several years ago I was at the local car wash waiting in line to pay my bill.  Even though I was looking straight ahead, I became aware of a looming presence behind me.  I turned around and found myself face-to-face with a belt buckle.  I craned my neck upwards and had to bend backwards to see that it was Kobe Bryant. I wasn’t going to bother him and ask some silly question that a star struck fan might pose.  I turned around and tried to act nonchalant despite the Tower of Pisa leaning behind me.  I paid my bill, went outside, and sat on a stone bench while I watched the energetic employees work on my car. 
         As it turned out, Kobe sat next to me.  He spread his “things” out next to my “things.”  Not sure why I put “things” in quotes.  What should I say, “paraphernalia”?  Naw… too… formal.  And “stuff” too… informal.  “Things” means… well, things, like cell phones, a pad on which to jot thoughts… for maybe a column, a small case in which to put whatever.  I detest “whatever.”  Just sharing with you the “things” columnists worry about.
         So I moved my things out of the way to make room for Kobe’s things.  In doing so, our eyes met.  Of course my head was tilted as far back as it could go and my chin was thrust in an uncomfortable upward position.  It seemed at that point appropriate to say something.  At that time Kobe was building a palatial home on a hill in the neighborhood.  The local papers had reported that the plans called for a full size basketball court in the basement.  For some reason beyond my ken, some neighbors objected to the basketball court.  Their view would not be obstructed because the house was on the top of the hill with nothing to obstruct.  So I said, “So how’s the house going?”  Kobe smiled, and said it was a pain or maybe “a pain in the ass.”  We chatted briefly about trivial things, what semanticists refer to as “pre-symbolic” language.  His car was ready and he said goodbye.  Hmmm, it just occurred to me that I was in line first, but his car was ready before mine.  Oh well. A group of kids gathered around him and he signed a few autographs and left.
         The reason I mention Kobe Bryant in the middle of a column about favorite columnists is that it never occurred to me to ask Kobe if he had ever read my column.  In fact, I never ask anyone that question.  But were I to ask such an obnoxious, self-centered question, I would not pose it to, of all people, Kobe Bryant.
         Neither would I pose that question to his rival and one-time teammate, Shaquille O’Neal.  Last week at Staples Center, the Los Angeles Times wrote about the unveiling of a bronze statue of Shaq.  It is 9 feet tall and weighs 1,200 pounds, a replica close to the actual person.  And Kobe was there to wish him well despite their past rivalry. Age mellows… sometimes.  By the way, I forgot to mention.  Shaq read my column.  I cannot say he reads my columns, but I know for sure he read one. 
         It happened years ago when the Lakers lost one of their games to the Sacramento Kings at the Western Conference finals. After the game, Shaq, who was unhappy with questionable calls from the referees, said that the only way to beat the Lakers “starts with a C and ends with a T.”  So, of course, that reminded me of footnote 2 in People v. Arno (1979) 90 Cal.App.3d 505, 514.  I wrote about this in a column in 2002 and suggested that Shaq’s word game reflected a poor loser.  I said the answer to the puzzle was not what Shaq intended, but what I thought was more appropriate, “Cheap Shot.”
         Of course, I wasn’t worried that Shaq would read the column and come to Division 6 and dribble me around the courthouse.  But one morning during our conference prior to oral argument, my colleagues placed before me a large manila envelope.  They watched me open it and, as I recall, took a picture of my reaction to what was in the envelope.  It was a copy of my column about Shaq.  Written above the heading was:  “Gilbert J., what makes you think I don’t read your column?  Shaq # 34.”
         The truth is that Shaq read the column because it was given to him.  My friend and colleague Justice Elwood Lui at that time was a lawyer and a member of the Harbor Commission.  Shaq, who has an interest in law enforcement, was then a reserve officer in the Harbor police department.  He wanted to get together and have lunch with Justice Lui and me.  Our lunch never took place.  Before we could agree on a date, Shaq left for the Miami Heat. 
So to my Daily Journal fellow columnists (who I read regularly and admire ‑ Chemerinsky, Hoffstadt, Balabanian, Kessler, Moskovitz, Kanner, Lawton, Connor, Berger, and others, whom I will recall after publication and kick myself for not mentioning), you never know who will be reading your insights and wisdom.  It could be someone from an entirely different profession or line of endeavor.  It could even be someone like Shaquille O’Neal, who as I already mentioned, read one of my columns.  Of course it’s not a big deal or anything… but I wonder… you think maybe he gave my column to Kobe?

And farewell to friend John Van de Kamp.  He used his considerable skills to help others as a public office holder and lawyer. John set the standard for the person we yearn to have in government, a legacy that will endure.

What Does Principle Have To Do With It?

     Compromise.  It is ubiquitous.  In last month’s column, I discussed the law students at NYU who refused to represent the county opposing an adoption sought by a gay couple in a moot court case.  The law school, lacking backbone, backed down and did not insist the students carry out the assignment.  The school unwittingly helped the students deprive themselves of the opportunity to learn how best to represent a gay couple with the same issue in the real world.  Wonder whether those students took the same position when they became lawyers, with clients to serve and bills to pay. 
          But this poses a legitimate question all lawyers must face.  Are they selling out if they take cases for causes they find inimical to their cherished values?  Does the principle that everyone is entitled to representation override such values?  How many criminal defense lawyers have to deal with the question put to them at dinner parties, “How can you represent someone you know is guilty?”  When such annoying questions are posed to me, I cite the example of the ACLU representing the National Socialist Party, whose members sought to conduct a parade in Skokie, Ill., wearing Nazi uniforms and displaying swastikas.  It usually gets me nowhere.
          Set against this troubling backdrop is Business and Professions Code section 6068 regarding the duties of an attorney.  Subdivision (h) provides, “It is the duty of an attorney . . . :  Never to reject, for any consideration personal to himself or herself, the cause of the defenseless or the oppressed.” 
          This tension is no less a matter of concern for judges than it is for attorneys.  I have friends who seek my advice on applying for a judicial appointment.  One such potential applicant told me he was opposed to the death penalty.  I told him that if he received a judicial appointment, it was likely, at some point, he would be given a criminal assignment.  He also was “unalterably” opposed to the statutes prohibiting prostitution.  I told him these concerns should not be a problem provided he followed the law and did not let his personal views influence his rulings and judgment.  I emphasized that it would be unacceptable to recuse himself from those cases, because he would be forcing his judicial colleagues to take on assignments he found distasteful.  And even trading cases with other judges would not be appropriate, unless a recusal was necessary because of a circumstance a particular case presented‑‑knowing a witness, for example.
Code of Civil Procedure section 170 provides, “A judge has a duty to decide any proceeding in which he or she is not disqualified.”  Section 170 was the driving force behind Canon 3B(1) of the California Code of Judicial Ethics which provides, “A judge shall hear and decide all matters assigned to the judge except those in which he or she is disqualified.”  ABA Model Code of Judicial Conduct (Feb. 2007) Rule 2.7 provides, “A judge shall hear and decide matters assigned to the judge, except when disqualification is required….”  This involves personal bias against a party, witness or attorney, knowledge about the case or personal friendships with parties in the case.  The comment to Rule 2.7 says:  “The dignity of the court, the judge’s respect for fulfillment of judicial duties, and a proper concern for the burdens that may be imposed upon the judge’s colleagues require that a judge not use disqualification to avoid cases that present difficult, controversial, or unpopular issues.” 
          My friend did not apply for the bench.  He never told me whether my informal admonition influenced him.  I do believe, however, he was quite capable of doing what the job required of him. Perhaps he thought it would be too much of a struggle. 
          I read recently in the Washington Post an article by Derek Hawkins about a Social Security Administration judge in Texas who took a defiant stand, perhaps without an inner personal struggle.  The judge refused to watch a lesbian, gay, bisexual and transgender (LGBT) video as part of his mandatory diversity training.  He asserts his right not to have to watch the video because it subjects him to a “religiously hostile work environment.” The judge claims he will suffer “irreparable harm” unless a court prevents the agency from disciplining him or forcing him to watch the video.  If he prevails, his religious beliefs may be superior to those of businesses who balk at doing business with the LGBT community.
          The tension between conscience and duty will be heightened in a proposed presidential executive order called “Establishing a Government-Wide Initiative to Respect Religious Freedom.”  I heard about this initiative on NPR last week.  The Investigative Fund, a non-profit corporation dedicated “to improving the scope and overall quality of investigative reporting in the independent press and beyond,” and the Nation Institute published an article by Sarah Posner on February 1, 2017. 
          “The draft order seeks to create wholesale exemptions for people and organizations who claim religious or moral objections to same-sex marriage, premarital sex, abortion, and trans identity, and it seeks to curtail women’s access to contraception and abortion through the Affordable Care Act.”
          Of course we have no way of knowing whether this proposed “order” will see the light of day.  But if it does, it is the judiciary who will be deciding, among other things, its First Amendment implications.
          I will resist the temptation to offer solutions to the troubling issues presented in this column.  Instead, I leave to you, dear readers, some questions to ponder, a kind of test. 
          Freedom to worship is one thing, but freedom to exercise and to practice one’s religion is another.  How does this distinction affect how we view the position of the administrative judge in Texas and the reach of the Initiative to Respect Religious Freedom?
          What is a religion?  Does the term “religion” apply only to “established” religions? 
          Can a set of unique religious principles created by a small group of people constitute a religion?  Do numbers matter?  Does it matter whether this number is 150,000 or 150?
          Do  judges who render decisions that protect religious practices for those charged with violating statutes that prohibit those practices help to establish religion? 
          My view?  Bring me a case to decide and I will do my best to provide a principled and coherent answer.  I know many of you are not shy about sharing your answers or impressions with me.  That is your option.  But not to worry, I grade on a curve.

Post Script- Judge Joseph Wapner, a principled judge who consistently decided cases with impartiality, fairness and dedication to the rule of law, was my friend and colleague.  He passed away last week.  Whether he decided a civil case involving complex business transactions in the Los Angeles Superior Court, or decided whether a pet store negligently dyed a French poodle blue instead of pink on “The People’s Court,” Judge Wapner was the nation’s quintessential fair judge.  Unlike many of his television successors, he treated litigants with dignity and fairness.  It was easy for him, because he was just being himself.  He showed the nation what the judiciary is at its finest.  Goodbye, Joe, and thanks for providing the standard we all strive to achieve. 

In The Nature of an Oymoron

     The Beverly Hills Bar celebrated its 85th birthday on Saturday evening, Jan. 28th.  There was a big party. I was there and played in the Big Band of Barristers conducted by Gary Greene.  The night before, the bar’s dynamic Executive Director Marc Staenberg was honored at a black tie dinner. 
         Eight-five years ago, minorities were not welcome in most bar associations.  The Beverly Hills Bar was created to remedy that injustice.  It opened its doors to all lawyers, regardless of their race, or ethnic and cultural background.  So I was happy to be there.  During a break, I mingled with the guests and met a Chinese immigration lawyer.  She looked me over and informed me this was the Year of the Rooster.  I asked if there was something about me that reminded her of roosters.  She gave me a second look and mumbled “not really.”  I was concerned because a sizeable number of short guys often act like roosters to make up for their shortcomings.
         She then asked what year I was born.  I took a few seconds, and figured it out.  I hesitated, but did not want egg on my face.  So I told her, even though it was nothing to crow about.  Instead of remarking how good I looked for my age, she looked off into space and began calculating.  I think she used her fingers.  After a minute or two, her eyes focused on me.  “You were born in the Year of the Ox.”  The what?  I was convinced she was mistaken.  I thought for a moment about china shops (pardon the reference), but oxen don’t go into china shops.  Are oxen stubborn?  No, mules are.  An ox is large; I am slight.  I protested, but she maintained her calculations were correct. 
         I checked with my friend and colleague Justice Elwood Lui, the first Chinese jurist appointed to the California Court of Appeal.  He consulted charts and graphs on a special app on his cell phone and concluded I was definitely born in the Year of the Ox.  He asked if my parents called me “Babe” and if I had an affinity for lumberjacks. 
I was about to protest, when it hit me like a pickax.  I realized the calculation was correct.  Quite apart from favoring the color blue, I had interpreted the Year of the Ox too literally. I am more in the nature of an oxymoron.  (Please do not emphasize the last two syllables.)  Scholars and charlatans agree that my columns are an exercise in oxymoronic prose.  The multiplicity of themes speaks to doubtful certainty.  I was overcome with bored excitement.
The oxymoronic theme reminds me of some law students at NYU some 26 years ago.  They were what I call “refusing advocates.”  With apologies to Lord Tennyson, they were “falsely true” to their beliefs.  The students refused to participate in a moot court competition when they were assigned to argue against the petition of a lesbian couple seeking custody of a child. 
The students and I agreed upon one point.  It is unacceptable to deny relief to the otherwise qualified petitioners because they are lesbians.  But that is why we need lawyers.  Lawyers protect all points of view, however offensive.  The Bill of Rights was enacted so that politically incorrect points of view could be expressed.
         At that time, I wrote in the Daily Journal:  "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.”
         Nat Hentoff in his book “Free Speech for Me, But Not for Thee:  How the American Left and Right Relentlessly Censor Each Other” (Harper Collins 1992) also expressed his dismay about the refusal of the students to participate in the moot court competition.  He wrote:
 "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.
         "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 quoted extensively from my column in his book which proves that the Daily Journal has a wide circulation.  But it meant a great to me because as a kid in high school I became a Nat Hentoff devotee.  He was an influential jazz critic when I had the absurd notion of becoming a jazz musician.  My passion for that career was not sufficient to overcome my aversion to crowded, smoke-filled night spots and late hours.  And I was not all that thrilled about starving to death.  Can you imagine that during a break on a gig, the musicians were so poor that they were forced to share a cigarette?

For years Hentoff wrote for the Village Voice covering a variety of subjects that included jazz reviews and social commentary.  He was a wonderful writer and incisive critic on subjects that included civil liberties, politics and political correctness.  A mutual friend and writer had planned to introduce me to Hentoff.  I looked forward to the three of us having a lunch or dinner and engaging in lively conversation.  That will not come to pass.  Nat Hentoff passed away last month.  He was a congenial provocateur. 

Wednesday, January 18, 2017

New Year’s Resolutions - Not to Keep

     It has been my practice at the end of each year to call on my aged friend Miss Ann Thrope.  It has been some time since I last wrote about her.  She is from a bygone era, I am not sure which, and objects to the au courant prefix “Ms.”  She is aged and ageless, and reputed to have been the lover of Moliѐre.
         Miss Ann, an avowed deist, has been an invaluable source of secular wisdom for me over the years.  When in doubt about whether to foist on my readership an audacious or questionable proposition, I call on Miss Ann for advice and counsel. Regular readers of this column will no doubt conclude my visits have been infrequent.  She sleeps most of the time, but in those rare moments when I catch her awake and sentient, she offers “the Spirit of wisdom and understanding… of counsel.”  Isaiah 11:2.  I hope the blasé will not scoff, for it is written that “[w]ith the ancient is wisdom; and in length of days, understanding.”  Job 12:12. 
         I arrived at Miss Ann’s Victorian hideaway to wish her well for the new year and to seek her advice on the advisability of sharing my New Year’s resolutions with you dear readers.  Because of the unprecedented uncertainty this particular new year brings, prudence compelled me to solicit suitable admonitions.  Her caretaker and companion Max greeted me at the door.  Max informed me that Miss Ann was in a deep sleep, but that perhaps she might respond if I held her hand and spoke softly. 
         We entered her spacious boudoir and made our way discreetly across the dimly lit bedchamber to the large davenport upon which she reposed.  I parted the gauze curtains that surrounded her.  I touched her small spindly hand and whispered “Miss Ann, my New Year’s ….”  Before I could finish my sentence, she opened her eyes and uttered a word, or cleared her throat, I could not tell which.  What I distinctly heard was “worry,” the second sound that escaped her wizened lips.  She gently squeezed my hand and smiled or . . . grimaced; I cannot say. 
         She immediately fell back into a deep slumber.  I was puzzled and thrown off my orbit, my mind be still “no more a‑roving.”  Did she utter a word before “worry” or was that sound a cough, or a frog, I hesitate to say, “croaking” in her throat?  If she did mutter a word, was it “not” or “don’t”?  My disquieting thoughts landed on Neil Armstrong.
         Did the first man to set foot on the moon say to billions of people on earth, “a” after the fifth word of his famous aphorism?  Or are astronauts good at math and physics but not so good at grammar?  One can argue ad nauseam what Neil Armstrong or Miss Ann Thrope said or didn’t say.  I was in a quandary. 
         Without Miss Ann’s guidance, I opted for the less controversial of my New Year’s resolutions.  I offer these few quotidian resolutions in the hope they will bring inspiration to a reader or two.
         1. I will try not to criticize those (apparently most everyone) who use the infuriatingly annoying adjective “iconic” to describe anything, most often the prosaic and insignificant.  I have even heard someone at Thanksgiving refer to Sophie's “iconic turkey stuffing."  Please.  It is the most overused word on the planet. 
         2. And that brings me to the second resolution.  I will try not to complain about the use of the word "planet" to depict the singularity of something or someone.  "He is the most talented taxidermist on the planet."  Why not the universe? 
         3. I am resolved not to foist on unsuspecting victims foolish limericks I make up on the spot.  This resolution requires some background.  Several years ago I wrote about attending a performance of Verdi’s La Traviata.  The program notes mentioned his lover, the great opera singer Giuseppina Strepponi.  At intermission, while my wife was visiting the restroom . . . .  Why do they call it a restroom?  In Europe, bathrooms are called what they are‑‑toilettes.  Just thought of a new resolution.  Call things as they are. 
         4. Getting back to Verdi and Giuseppina. While waiting for my wife to return from the toilette‑‑maybe restroom is better, I quickly penned a quatrain to honor theses two iconic artists.  I was sitting on a couch in the downstairs waiting room where there are… restrooms containing toilettes, when an elderly, elegantly attired woman sat next to me.  She asked me if I enjoyed the opera and I read her my limerick.
Giuseppina Strepponi
Loved Verdi and spumoni,
Was his lover, not a crony,
His muse, his rigatoni.
         She got up and left.  Can you imagine?
         At the next Verdi opera I attended, I wrote another verse, a version of which I shared with you in this journal. 
They, an island, not a Coney,
She, Verdi's love, his love only,
A love that's true, a love not phony,
Not Swiss nor Cheddar, but Provolone.
         I think that is quite enough.  So I am resolved not to burden you with more inane stanzas like the one I wrote after seeing Verdi’s interminable masterpiece Simon Boccanegra.  I say interminable because the geniuses at the Music Center allowed for only one intermission for this four-and-a-half-hour extravaganza.  I was almost arrested for fighting my way out of the hall before the intermission where I sprinted to the. . . place where they have the toilettes. 
         They wouldn’t let me back into the concert hall until the “intermission.”  So to pass the time I wrote another stanza.
They had kids, quite a lot,
Not to keep, let others adopt.
One day they finally married,
But then no baby did she carry.
         I could go on, about their pets, and Busseto, the rustic village where they lived among the disapproving townspeople, until they married, and about the dogs they adopted to make up for the kids they deposited at the local nunnery.  Query- Do they get a pass because they were towering artists and lived in the middle of the 19th century?
         5. I am resolved not to criticize those of my colleagues throughout the state who in a judicial opinion begin a discussion of the facts or the law with "at the outset."  Or worse, "at the outset we note."  Please note this unnecessary redundancy.  Oh dear.  If it is redundant, it is ….
         6. We in California are blessed to have the most outstanding Supreme Court in the nation.  So who am I, even on rare occasions, to chide them for doing something I consider ill-advised?  I am resolved not to criticize our high court . . . unless they . . . well, read the new rule that is published at the end of Vergara v. State of California (2016) 246 Cal.App.4th 619.  Depending upon how well I do with these resolutions, you may read about my conflicting views on this new rule in future columns.  Whether I agree with the comments of the dissenting justices or not is beside the point.
         So Happy New Year.  We and the United States Supreme Court need one.  But I am optimistic.  I am just as sure that Miss Ann said “don’t,” as I am that Neil Armstrong said “a.”  And may we all succeed in bringing our New Year’s resolutions to fruition. 

Wednesday, December 28, 2016

Peace of Mind

December.  Wish I could title this column Peace on Earth. But this prosaic, yet laudable, aspiration seems more elusive than ever.  Instead, I will take a stab at another deserving bromide, peace of mind.  Perhaps by the end of this column, I will have opened a pathway to inner tranquility.
I hearken on the theme I have harped on over the years‑‑ uncertainty.  There, before the helpless, hollow-minded lawyer, “falls the shadow” of uncertainty.  It is a heavy-handed, harrowing, horrific, hateful, hurtful, hellish harassment.  It hastens the hapless lawyer to hesitate, then harpoon, hinder and harm all hope for help.  Sorry, I got a little carried away with the H’s.  I don’t mean T.S.  I simply wish to stress that a harangue is not helpful.
I acknowledge that uncertainty is omnipresent, but more apparent in December as we contemplate what’s in store in the coming year.  And after our extraordinary presidential election, it predominates.  Because judges must refrain from political involvement, I do not speculate about the pursuit of civil rights cases by the new United States Attorney General.  Nor do I pose annoying questions like who will be the next United States Supreme Court justice or how she or he will vote on controversial cases.  That would be a futile endeavor. 
Lawyers and judges know that fretting about future outcomes is unproductive.  The best we can do is make seemingly rational predictions that are more likely educated guesses about how judges or juries will decide particular cases.  The decisions of so-called swing voting justices on our higher courts often leave us bewildered. 
          A recognition that what appears on the surface is seldom reflective of reality allows us to better cope with the world as it is as opposed to what we pretend or hope it to be.  We do better when we take what appears on the exterior with a grain of salt.    Judicial elections come to mind.  
          Some lawyers aspiring to garner votes for an open seat on the superior court hope to prevail through their personal ballot description.  But I hope most of us know that descriptive phrases in front of the word "prosecutor," such as:  "serial murder," "sex perversion," necrophilia," "repeat parking meter offender," do not guarantee the candidate will be a good judge.  In this age of public confessions, some voters could believe these phrases describe the prosecutor rather than the crimes the prosecutor prosecutes.  Maybe a "gang prosecutor" belongs to a gang.  Descriptions and stories are subject to interpretation.
Of course, we lawyers and judges are writers and storytellers.  And this means our tools are our words… and I suppose our brains from which the words come.  My friend, writer Charles Embree, reminded me what the 20th century philosopher Ludwig Wittgenstein said about words.  “Language is tautological.  A word can only be defined by other words.”
          At first I wasn’t so taken with Wittgenstein.  He was an impatient chap.  There was a time when he taught grammar school in small Austrian villages.  He was reputed to hit kids who got the wrong answers on math quizzes.  I thank my lucky stars that I wasn’t one of his students.  I would have been black and blue.  But because I don’t believe in astrology, even though I am a typical Capricorn, and Wittgenstein was smacking Austrian kids before I was born, the stars probably have nothing to do with it. 
          But Wittgenstein was one smart guy and I learned to respect him despite his knocking grammar school kids around.  Bertrand Russell described him as “the most perfect example I have ever known of genius as traditionally conceived; passionate, profound, intense and dominating.”  (Wittgenstein:  A Life:  Young Ludwig 1889-1921. Univ. of California Press, 1988.)  In fact, most of my columns are inspired by Wittgenstein, who said: “A serious and good philosophical work could be written consisting entirely of jokes.”  Bertrand Russell died 17 years before I published my first column.  He was good at mathematics.  He would not have liked my columns.
          Other disciplines acknowledge that what appears on the surface is misleading.  Last month I wrote about psychoanalyst Dr. Joye Barth who posited that patients may unwittingly create fictions in reliving their pasts.
          Attorney, lecturer, and author Rafael Chodos has written a book I commend to you.  It is titled “Why on Earth Does God Want to Paint?  Centripetal Art.”  (Giotto Multimedia 2009.)  I cannot do justice to this provocative and challenging exposition on the work of Chodos’ wife, the renowned artist Junko Chodos, in a paragraph or even in an essay.  Junko's writings and paintings take us beneath the surface where she exposes the innards of plants, bodies and engines.  They have the power to shock us into a recognition of what lies beneath the surface and to illuminate awareness about the center of our very being, hence, the word "centripetal."  Junko’s revelations changed Chodos' life and enabled him to achieve a deeper insight about himself and his mission as a lawyer and writer.
          I don’t suggest that exploring the depths of Junko Chodos’ art or pondering Wittgenstein’s semantic and philosophical conundrums will answer whether an equitable indemnity cause of action is viable.  But exploring questions posed by other disciplines makes for a better lawyer or judge.  To recognize the limits and the possibilities inherent in our profession makes us better at what we do. 
          Uncertainty need not be unnerving.  We gain composure and grounding when we embrace the tenets and professional responsibilities of our profession.  Years ago I was a panelist on a program concerning civility where all the participants received a handout that you will find invaluable.  It is called:

Observed by the Senior Advisory Board of the
1998 Ninth Circuit Judicial Conference

1.       Give your word, and then keep it.

2.       Accept responsibility, and then perform.

3.       Pay attention to detail, but keep the whole picture in mind.

4.       Remember that exploiting short term advantage often brings lasting bad consequences.

5.       Of course be truthful, but also take the trouble to be accurate.  Being candid requires both courage and tact.

6.       Understand that courtesy and graciousness are usually repaid in kind.

7.       Remember that your integrity is your greatest, and most precious, asset.

8.       Be an attentive listener.

9.       Avoid criticism that is either needless or nonconstructive or both.

          To practice these simple principles is to calm the disquieting effect of uncertainty.

          Let’s go back to Charles Embree and end with lines from a poem he wrote, “The Sub-Atomic Life Is Not Worth Living.”  (Not to worry about the title.)  He opened with his version of a verse from a popular song written and performed by Louis Jordan and his Tympany Five in 1944, "Is You Is or Is You Ain’t My Baby."  Charles wrote:

Is there is or is there ain’t a
From what I hear there’s no more room
For doubt;
Uncertainty now is certain,
Maybe’s time is time that’s done run out.

And I take my final leave this year wishing you Happy Holidays and Happy New Year… with an abundance of Peace of Mind.  

Boxer Dogs, Boxer Rebellion, and This…

          When one, O.K. me, has written a column for 28 years, readers come to know you, or wish they didn’t.  From month to month you make and lose friends and enemies.  You appreciate the praise, and bear the criticism.  It is what judges experience and, as they say, comes with the territory.  After almost three decades, I seldom worry about whether or not a topic “will play.”  I simply write about the insights I gain through my experiences, quotidian, or otherwise.  These often involve personal anecdotes.  One reader sent me an email thanking me for offering him “insight into the mind of appellate court judges.”  Fearing that my colleagues throughout the state would seek a restraining order to prevent future columns, I wrote him to explain that there is no generic appellate mind.  We all do our best to decide cases in accordance with the law and the standards of review.  Incidents or ordeals in my life may affect how I, not other judges, view the law. 
The preceding paragraph was an explanation or, if you will, a warning that the remainder of this column is about an intensely personal matter… my undershorts.  So last Monday morning, I followed my normal routine‑‑crawled out of bed at 6:30 a.m., tended to the usual morning matters, then grabbed my gym bag, packed with what I thought were all the usual accoutrements, and hurried to the gym for a robust workout.  Half-undressed and standing at my locker, I discovered I left my gym shorts at home.  All I had were my boxer shorts, the ones with the bright red and blue squares, the ones that prompted my buddies in the locker room to torment me.  Bummer!  What to do?  Could I get away with wearing my boxer shorts?  I went for it and glad I did.  I learned something, proving what Marcus Aurelius once told me over a beer at the Forum Bar, “Life is what our thoughts make of it.” 
For starters, no one seemed to notice my shorts.  But because of my predicament, I was checking out everyone else’s shorts.  And I realized after so many years at the gym, this was the first time I had ever thought about, let alone noticed, anyone’s shorts.  I felt self-conscious glancing at other people’s shorts.  It was apparent that no one other than I was looking at anyone else’s shorts.  I am not sure this has anything to do with etiquette or the concern that a below-the-belt observation could result in an arrest.  If on another day someone in my line of vision had committed a crime in the gym while I was doing pushups, and I was called as a witness to identify the person by the type of shorts the culprit was wearing, I would be demolished on cross-examination.  Let’s not even try to envision what that crime might be.  By the way, deciphering the paragraphs of script tattooed on the backs of various gym members, a topic we have explored in past columns, has not resulted in criminal prosecutions.
          This awkward experience got me thinking about the reliability of testimony.  And this in turn took me back to my college philosophy classes.  For this I have to thank my pal Marcus.  The beer was worth it.  Do the facts that witnesses perceive exist independently from their perceptions?  What do witnesses really see?  To what extent do their past experiences, concerns and wishes influence how they perceive the facts?  They might imagine what they saw.  Do facts exist apart from our perception of those facts?  Sort of like the tree-falling-in-the-forest question.
          I consulted my friend, eminent psychoanalyst, Joye Weisel-Barth.  In her lectures and published papers, Dr. Barth posits that in the story of a patient’s or any person’s past, the imagination plays a role, writing a new story, growing out of one’s desires and ambitions.  Of course the intimate relationship between an analyst and a patient over a long period of time is far different than that of an attorney and client, but there is one similar characteristic.  The relationship involves a story about the past.  Barth explains that “the analyst and the patient use their imaginations to filter experience, memories … and specific explicit and enacted moments of experience.”
          Similarly, I would argue that imagination plays a role in the stories that are engendered though the relationships between lawyers, clients, witnesses and judges.  This should teach us not to be too smug or too certain in how we interpret and relate these stories.  An awareness of this phenomenon can bring us a step closer to achieving justice.
But is the recollection of all facts subject to such concern?  What about establishing whether or not a letter or contract exists, what some would call an irrefutable or irreducible fact.  If the letter or contract is produced and is genuine, one’s imagination may not be a factor.  Of course the interpretation of the words and terms of a letter or contract is a different matter.
Speaking of letters, I want to share some exciting news with you.  I recently received an email in letter form (exactly as I received it) from the “COPORATE HEAD OFFICE of Citizen’s Bank of Canada,” informing me that “Twelve Million Six Hundred Thousand United States Dollars has been approved and deposited few days ago with our BANK” in my name by the “foreign debts settlement/compensation committee of European Union and the Executive members of the World Bank, and they instructed us to credit this fund direct to your private bank account with immediate effect.”
          Pardon the grammatical errors in the email.  No doubt “they” were excited about my good fortune.  And that’s not all.  The email goes on to inform me, “Meanwhile, the good news about your fund now is that your compensation payment file with some of the legal documents backing this fund has been forwarded to the Canadian Ministry of Finance and the United Nations for final approval.”  Yes, I know this news is too good to be true, but the email says when they “hear” from me, they will proceed with the transfer because “we were mandated to transfer this fund to you as one of the beneficiary whom the name is listed in the World Bank foreign debts settlement/compensation payment file.”        Wow!  And all I have to do is forward them personal information including “Any of Your Identity Card.”

          I told my friend Marcus Aurelius about my good fortune.  He brought up the subject of my shorts. 

Wednesday, October 26, 2016


     On Labor Day, 41 years ago, Justice Stanley Mosk swore me in as a judge of the Los Angeles Municipal Court.  Within a few days of this depressing… I mean significant anniversary, the Daily Journal published my 252nd column.  How best to describe the column?  In my imagination, a perceptive reviewer would write:  "An adventurous read of a profusion of topics artistically tied together by a common thread that may escape readers unaccustomed or hostile to subtlety."
          The overriding topic in that column was, in a word, "short."  I am shorter than I was at the beginning of my judicial career four decades ago.  I received supportive comments that it's O.K. to be short… from short people and elderly people who are shrinking.  I also received emails in praise of short opinions.  Significantly, none came from the Supreme Court. 
I wrote about the celebrated Palsgraf case, the premier example of a masterfully written short opinion.  (Palsgraf v. Long Island Railroad Co., 248 N.Y. 339 (1928).)  By coincidence, just at the time my September column appeared, I spoke to a group of young law students at UCLA School of Law who were serving as externs at the Second District Court of Appeal.  As an example of good writing, I read to them the facts in the Palsgraf opinion.  You will recall that a man carrying a small package jumped aboard a train as it was pulling out of the station.  The package, which contained fireworks, fell from his grasp onto the tracks and exploded.  The shock caused scales at the end of the platform to fall on and injure plaintiff Ms. Palsgraf.
The students looked puzzled.  "What are scales?" they asked.  I was dumbfounded.  "Scales?" I asked rhetorically.  "Does anyone here work out in the gym?"  Nods and a few "yeahs."  "Do you ever weigh yourself on the scales?  And doesn't the doctor weigh you on the scales in her office?"  Blank looks from everyone.  It is bad enough that age makes us shorter, but does it make our language archaic?  Then one student accepted my explanation of scales, "O.K., fine, scales weigh you.  But why would anyone want to weigh themselves or anything at a train station?"  I think I settled the issue.  I patiently explained that a passenger might need to weigh his or her valise. 
In my discussion of the Palsgraf case, however, I also had a question.  How could a small package of fireworks falling on the tracks explode with such magnitude that it causes scales at the end of the platform to topple down on poor Ms. Palsgraf?  I had in mind a large Otis scale with a weighing platform at the base, a long neck reaching up to a large round dial with an arrow denoting pounds.
Attorney Michael Sokolich wrote to me that when he was in law school he too wondered about how the fireworks in Palsgraf could explode if a fuse was not lit.  When I was in law school, I was too scared to ask that question of our intimidating professor, Dean Prosser.  Sokolich explains that there used to be types of fireworks that explode on contact with the ground or any hard surface.  An example is "cracker balls," that explode when thrown at a hard surface.  I remember them.  But as Sokolich points out, they were pea-sized and did not have much power.  He posits that the likely explanation is that at the time Palsgraf was decided there was a class of larger fireworks called "torpedoes" that may have been the culprits.  Maybe so, but the package of fireworks that allegedly caused the explosion in Palsgraf was only "about 15 inches long."  Like questions concerning the meaning of life, or why we or our tempers get shorter, we are not likely to know the answer to the Palsgraf fireworks question. 
But I was particularly impressed with Sokolich's wise observation that "older cases . . . are usually models of brevity and clarity.  The same with our statutes, older usually means shorter." 
But getting back to fireworks and torpedoes.  The California Supreme Court has adopted a new policy concerning petitions for review.  The policy was apparently provoked by Vergara v. State of California et al., 246 Cal.App.4th 619 (2016).  The case involved the constitutionality of various provisions of the Education Code.  At the conclusion of the published opinion is a "STATEMENT" by the Chief Justice.  The statement sets forth a policy concerning statements by justices who dissent from the denial of a petition for review.  Those dissenting statements will be published and appended to the original appellate opinion in the Official Reports.  The Chief's STATEMENT reminds us that "an order denying review does not reflect the views of the justices voting to deny review concerning the merits of the decision below." 
Something like this practice is common with United States Supreme Court justices who wish to grant certiorari when their colleagues vote to deny.  Such a justice might write in the order denying certiorari a brief reason why he or she would grant cert.  In Vergara, Justices Liu, Cuéllar, and Chin voted to grant review.  But Justices Liu and Cuéllar wrote published dissents to support, not just their reasons for wishing to grant review, but to criticize the Vergara opinion.  We appreciate insight into why a particular Supreme Court justice believes review should be granted.  But if the dissenting views on a petition for review become tantamount to opinions critiquing the Court of Appeal opinion, the precedential value of the Court of Appeal opinion is diminished. 
Maybe that is what the dissenting justices wish to accomplish, but certainty and predictability suffer.  I fear this rule could morph into something even more scary.  Imagine for a moment that Justice Chin, who also voted to grant review in Vergara, did so because he agreed with the opinion but thought the Supreme Court should speak to the issues.  What if he wrote a dissenting opinion, dissenting from the opinions of Justices Liu and Cuéllar?  Oh dear!  And what if the justices voting to deny review weighed in with opinions of their own? 

It stands to reason that from my perspective this new policy is unnerving.  If one of my published opinions is harshly criticized by one or more dissenting Supreme Court justices wishing to grant review, I will feel like Ms. Palsgraf.  Only it will be the scales of justice that fall on me.  Such an event would be so… so… unforeseeable.  I just might pack my valise and catch the next train to Rockaway Beach.  


     I am a strong proponent… No, I need a more forceful adjective.  How about “obsessive”?  Yes, …an obsessive proponent, advocate, champion for short opinions.  Is anyone listening?  Not the United States Supreme Court and not many of my distinguished colleagues in our state courts.  We limit the number of pages in briefs that lawyers file in our courts.  Judges should adhere to a similar rule.
We know all the arguments favoring short opinions advanced by a host of commentators, which include Garner, Aldisert, Leflar, and Witkin, to name a few.  With me, it has become an…oh, yes, I already said, "obsession."  "Fixation" probably doesn't add much.  But you get the idea.  But why such an all-encompassing preoccupation?  Recently I experienced an epiphany in an environment far removed from the law.  That lawyers and judges were present had nothing to do with my insight.
         A few months ago musicians and singers, all of whom were in the legal profession, performed a "rock and roll" medley of songs from the 50's and 60's written by famed composer Richard Sherman.  The concert at Disney Hall featured the Los Angeles Lawyers Philharmonic conducted by Maestro Gary Greene, Esq.  The singers included Judge Curtis Kin, Linda Hurevitz, and Ken Freundlich.  The musicians were Bill Ryan on guitar, Eric Schaefer on bass, Jerry Levine on drums, and yours truly on keyboards (a misnomer)‑‑it was only one keyboard, electric (ugh), not a real piano, or, as they call it in the profession, an "acoustic" piano.
Rock and Roll from any era is not my genre.  But playing in this concert was a treat, because it was in honor of the personable and warm-hearted composer Richard Sherman, winner of two Academy Awards, The National Medal of Arts, and numerous other awards.  Richard was present and told me how much he enjoyed the concert. 
The tunes we played included "Pineapple Princess" and "You're Sixteen."  (Don't I wish).  But one tune in particular upset me, "Tall Paul."  The lyrics make a big deal about stupid Paul just because he's tall.  Of course it bothered me because I’m short, not the most impressive attribute to have in high school…when you are sixteen. 
And with advancing age, I'm getting shorter.  I have been called the "incredible shrinking judge."  I have nightmares about the movie "The Fly."  In the final scene of the early 1958 film classic, the hero who has turned into a fly is nearly invisible caught in a spider's web.  I still identify with this creature crying out in his small, high-pitched voice, "Help me, help me." 
So it is possible that my bias in favor of short opinions stems from my height… or lack of it.  Yet that should not detract from my argument that generally shorter opinions more clearly explicate the law than longer ones.  Only, like the plight of the fly, no one appears to hear my cry for shorter opinions, despite the universal acknowledgement that "less is more."  I would amend the maxim of jurisprudence enshrined in Civil Code section 3537 so that it would read: "Superfluity does vitiate."
Some of our nation's great jurists wrote short opinions.  I have often remarked about Justice Cardozo and his famous Palsgraf opinion.  Twenty-seven years ago I wrote in the Daily Journal:
"I don’t think writing comes easy.  It requires effort and commitment to write something of quality.  A good finished product comes from several drafts, whether it be an article, a hate letter or a shopping list.  It’s even harder to write an opinion that is lucid and concise.  Take for example the famous opinion in Palsgraf v. Long Island Railroad Co., 248 N.Y. 339 (1928).  It is a paradigm of simplicity and clarity.  Here is the statement of facts:
“‘Plaintiff was standing on a platform of defendant’s railroad after buying a ticket to go to Rockaway beach.  A train stopped at the station, bound for another place.  Two men ran forward to catch it.  One of the men reached the platform of the car without mishap, though the train was already moving.  The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall.  A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind.  In this act, the package was dislodged, and fell upon the rails.  It was a package of small size, about fifteen inches long, and was covered by a newspaper.  In fact, it contained fireworks, but there was nothing in its appearance to give notice of its contents.  The fireworks when they fell exploded.  The shock of the explosion threw down some scales at the other end of the platform many feet away.  The scales struck the plaintiff, causing injuries for which she sues.’”
Cardozo pointed out that an over-emphasis on details obscures meaning, and the Palsgraf opinion makes the point with just the right amount of detail.  Yet, even the writing in Palsgraf has been criticized.  I read recently that one critic complained that there was no need to mention two men running for the train.  His point, who cares about the guy who made it to the platform of the moving train without mishap?  He has nothing to do with the case.  The person of interest is the one who was unsteady, requiring the guards' help, which caused him to drop the small package of fireworks.  
Not sure I agree with that assessment.  With an economy of words, Cardozo vividly describes the entire scene.  Two men are running for the train.  The less agile, and probably the taller one, needed help.  In my opinion the scene lacks impact without reference to the shorter, more nimble, of the two men running for the train.  The words paint a picture the reader can visualize. 
Yes, these facts, so clear and concise, are nevertheless puzzling.  How, under these circumstances, could a small package of fireworks explode?  And how could such an "explosion" be of such force to cause scales at the other end of the platform to fall on poor Ms. Palsgraf?  Don’t you have to light fireworks?  Maybe a spark emanated from the engine, or maybe fireworks in the 1920’s were different than the firecrackers I lit as a kid.  Don't spread that last comment around please. 

I can hardly bring myself to say this, but could it be that the Palsgraf opinion is too short?  But then again is it necessary to know how the fireworks exploded?  I mean they did, right?  I have to think about this some more.  Oh gosh, this column is getting too long.  Better stop.  I’ll get back to you.  If I had time, I would have written a shorter column.