Monday, December 19, 2005

Stretching The Parameters (Yikes) of Language

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

Tuesday, October 11, 2005

Law Firm Breaks Up-This one a Reality Show

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, August 17, 2005

Judges Must Stay In Tune

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

Monday, June 06, 2005


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

Wednesday, April 27, 2005

A closing Argument for Johnny Cochran

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

Monday, March 21, 2005

Perceptions-Castles of Sand or Stone

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

Monday, February 07, 2005

If Your Theme is "It's Good Enough," It's Time to Change Your Tune

I recently had a birthday. It wasn’t a good one. It came at the same time of the year as all the others. I guess it wasn’t all that realistic to expect this year to be different. My age makes me eligible for curmudgeon status. But I was a precocious child and became a curmudgeon at four. Well you would too, if your birthday comes, as mine does, smack dab in the middle of the holiday season, a few days before New Years. I suppose that is why so many things other than poorly written briefs irritate me during the holiday season.
Take holiday cards for example. Every law firm in town sends its expensive custom card with a snow scene from some vague year in the nostalgic past. There is a sleigh pulled by a frisky horse with cheerful ice skaters in the background. No matter that this is Los Angeles and it’s 82 degrees outside. Or maybe they send a “witty ”card showing Santa being served with a complaint for flying without a permit. And for that personal touch the card bears the name of the law firm in colorful red print. Sometimes two or three different law firms send the same card. They should have a central registry like a wedding registry to avoid duplication. No matter, they all go in the basket along with the third draft of an opinion I am working on. For all I know, the firm on the card represents a party.
But what is the most irritating of all, is the number of form letters I receive during the holiday. These letters often come from persons I hardly know and are filled with information about dozens of people I don’t know, and never want to know or meet, ever. The assembly line letters illustrate our addiction to efficiency and our yearning to be personal. In fact, these letters are the product of lazy writers who will not take the time to craft a letter to a specific individual. Instead they assume their addressees are fungible, bound together by an enduring interest in prosaic stories about unremarkable people living tedious lives. “Dear(name of the addressee written in the blank), Mort and I painted the bathroom last March-only we ran out of paint. Since we bought the paint a long time before we started painting we couldn’t get exactly the same color, so we painted the ceiling a different color than the walls. We thought it looked kind of funny at first, but I think its OK for a bathroom; well, at least the guest bathroom. Ronald, our dog, caught a muskrat last July, brought it into Sparky’s room and dropped it in his bed. It caused quite a ruckus.”
And then it occurred to me that perhaps the judicial opinions I write are strikingly similar to the form letters I detest and may be just as boring. So who was I to criticize well-meaning people who had included me as a recipient of their insipid form letters. I needed a straight answer, and so I decided to call a friend who was not shy about voicing his opinions on any subject under the sun including holiday cards, form letters, my spoken and written opinions, and even my columns. From him I would not receive solace, but uncompromising honesty. What else could I expect from one who had authored a trilogy of short novels entitled, “I Love You, I Hate You, Drop Dead.”
But the day after my birthday, I, and the rest of the world suffered a devastating loss. The friend I was about to call, the legendary Artie Shaw, had passed away. I was fortunate to have known Artie for the past 15 years and his insistence on perfection strongly influenced me. But Artie was a genius to whom perfection was no stranger. To me, genius and perfection are aliens, more mystifying than the Bush twins. But to him, who no doubt was the finest clarinetist of all time, perfection was a constant yet nagging companion. This was one marriage that lasted to the end.
He was an expert in just about everything. The upstairs of his home in Newbury Park was a scaled down version of the New York Public Library. You could divide the library up into departments, the sciences, including quantum mechanics, and astrophysics, history, philosophy from the pre Socratics to the 20th Century, painting and sculpture, and literature. Yes, he read every damn one of those books at least a couple of times and remembered everything he read. He once asked me who, not what I was reading. I said, “Proust.” He then launched into an exegesis on “Swanns Way.” He refused to take credit for his ability to recall everything he read. “I was born with a photographic memory,” he said. “Therefore I don’t get the credit.” “Do you get credit for understanding all that you have read” I asked? That question elicited a smile.
So I have been forced to ponder the dilemma of judicial opinions and form letters alone, yet I can imagine Artie's analysis. He would point out their similarities. They are written for a large audience, not just the litigants. They seek to elucidate points that are presumably of interest to a wide, albeit limited audience. Judicial opinions that are poorly organized and dwell on facts that do not define the legal principle at issue are more like the form letters that ramble, and at best have limited interest.
I can hear Artie pointing out to me that this is entirely avoidable. One merely has to take the time and commit to writing an opinion that is clear and readable, something of interest to the reader. And the same advice can be given to the writer of an appellant’s or respondent’s brief, or the writer of a form letter. No one cares about the muskrat dropped in Sparky’s bed, especially Sparky, a 17 year old line backer on his high school football team, who with fervor wishes his mother hadn’t written about the muskrat incident. His grandmother loves the story.
But what of the case where there is widespread interest. The obligation to be clear about what you wish to tell your audience is all the more essential. Take for example, U.S. v Booker, 2005 DJDAR 410 (U.S. Jan. 12, 2005) the United States Supreme Court decision that invalidates the Federal Sentencing guidelines—I guess. Booker tells us that the guidelines are unconstitutional but courts still have the discretion to use them. Hmmm.
Artie would have disapproved. The ruling leaves much to ponder. Does not Apprendi v. New Jersey, 530 US 466 (2000) and United States v. Blakely 124 S.Ct.2531 (2004) hold that facts that increase a sentence must be decided by a jury? No stranger to litigation, Artie said, “If you are a judge making important decisions, people ought to know what the hell you are talking about.”
Whether writing a form letter, a brief , an opinion, or engaging in an worthwhile endeavor (that should exclude columns), Artie's advice applies; "Good enough is not good enough." Printed in the program prepared for his memorial service was a poem dedicated to him by his friend, A.C. Greene, the poet, not the basketball player. It is titled, "The Soul Of The Song." It speaks to the mission of the artist, but however limited may be our own talents, it offers insight for those who believe that "good enough is not good enough." It reads:
He taught the clarinet to think
Not just to sing.
To explore the music it was making.
To let the fingers probe and find
The hidden places,
The crevices of meaning and emotion.
A good song has---------
But must be found and captured
By some divinity or other,
A melody that cannot just be played,
Can't be chartered,
The secret tempos and their keys
Can only be discovered
By a mind that is listening for the soul
The manuscript does not display.