Thursday, December 11, 2008


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

Tuesday, May 06, 2008

A Good Limerick is an Oxymoron

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

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

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

Guiseppina Strepponi

Loved Verdi and spumoni,

Was his lover, not a crony,

His muse, his rigatoni.

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

There once was a crook named Jones,

He got all his funds through loans,

His life was once sunny

When he took plaintiff’s money,

This judgment will make him atone.

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

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

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

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

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

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

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

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

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

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

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

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

There once was a poet named Frost

Who claimed, in poor rhyme, he was lost

But those in the know

Could with ease clearly show

Both his syntax and purpose were crossed.

He admitted both paths were the same.

At the time no clear difference could he name.

But with hindsight he poses

We should laud him with roses

For a bravery of choice he would claim.

In summation, his effort is clear.

To engender a motive to cheer.

But the choice made that day

In an offhanded way

Was by a traveler who never knew fear.

"Judgment for Defendant."

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

There once was a poet named Frost.

Who stood before two roads that crossed.

He looked at the first,

And thought it the worst,

Took the other and got himself lost.

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

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

There once was a judge not so solemn.

His opinion solved many a problem.

He often told jokes,

To all the good folks.

But limericks he saved for his column.

Wednesday, January 23, 2008

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

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

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

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

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

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

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

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

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

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

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

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

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

My unwritten opinions would follow John Cage’s

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

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

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

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

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