Wednesday, August 15, 2007

What Goes Around Comes Around--But Not Always

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