Monday, August 16, 2010

The Only Thing Certain Is Uncertainty- But I Am Not Certain

Chief Justice Ronald George’s announcement that he will not be seeking re-election stunned most of us in the legal community. If someone had asked me before the press release about his retirement, “Think the Chief will step down soon?” my immediate response would have been, “Not a chance.” But even without his well-stated reasons and his candid interview with Larry Mantle on local FM station KPPC, it all makes sense. It is hard to imagine his absence from the judiciary, but through the programs and procedures he has implemented in California’s court system, his presence will be felt long after his departure. He achieved the goals he set for himself.

I must admit, when speculation focused on Chief George’s replacement, Justice Tani Cantil-Sakauye was not a name that immediately came to my mind, and certainly not to the minds of the people the media sought to interview. Of course none of us knew what we were talking about. We were just guessing who we thought the Governor might pick based on inadmissible, speculative evidence. Objection sustained! And in our discussions (a euphemism for gossip), like the lawyers and judges we are, we marshaled plausible arguments to support our suppositions.

And then when I received the news that Justice Cantil-Sakauye was the nominee, it immediately made sense, just as the Chief’s retirement made sense after a moment's reflection following his announcement. Justice Cantil-Sakauye is a member of the Judicial Council and chairs the committee on financial accountability. The judiciary budget is somewhere around $4 billion. Gulp! Please keep this under your hat.

A few years ago, Justice Canti-Sayauye sat in our courtroom in Ventura with two other judges as a special master on a Judicial Performance Commission matter. In the evening, she, her colleagues on the case, and the justices from our division had dinner. We ordered an array of different-priced dinners. Tani figured out how to divide the check, a seemingly insuperable task in light of the makeup of the dinner party. She was firm, yet tactful. It is no wonder that she is an able administrator who has mastered arcane details of the judiciary’s budget vis-à-vis the state’s budgetary shortfalls.

And she is likely to keep in place many, if not all, of the innovations and programs Chief George instituted. Her opinions are solid and well crafted. She is open-minded, down to earth, a good listener, warm and gracious, not impressed with pomp or status, and has a disarming twinkle in her eye. Armed with this solid evidence, I safely can predict she will be a superb Chief Justice.

This sudden changing of the guard makes clear that we cannot predict what the future holds, and that patient reflection often leads to a clear analysis. This avoids a hasty jump to a flawed conclusion. A few months ago, my wife, Barbara, and I were traveling westbound in the center lane of Olympic Blvd., in an area of Los Angeles known as Koreatown. Without warning, a van suddenly moved into our lane directly in front of us, causing me to slam on the brakes. Our car pitched forward, stopping just inches behind the offending van. Packages and our coats in the back seat slid to the floor. Our bodies strained forward against the seat belts.
(Expurgated version.) “Whew, that was a close call,” I said aloud. At that point I was more relieved than angry. I pulled into the right lane of traffic and soon I was adjacent to the van that had pulled in front of us. I glanced at the driver who was looking at me with a big smile on his face. In fact, he was laughing.

I sped up, and so did he. I felt my pulse quicken and the dam of anger about to burst, sending roiling waves of fury to engulf any and all in the path of the flood, a phenomena Barbara has witnessed on various occasions. “That idiot is laughing at us,” I said in a voice an octave above normal. “Just ignore him,” she said, the equivalence of a finger in the dike. We pulled up to a stop light, and, a moment later, there he was, Mr. Smiley, right next to us. His passenger window was down. He gestured for me to roll down my window. It was noisy, and I couldn’t hear him that well, but his words were so emphatic that I could read his lips. “I’m so sorry,” he said. The adrenalin rush subsided, and the turbulent waters receded. We carried on the remainder of the short conversation in sign language.

I pointed to my head to tell him that I thought he was laughing at us after cutting us off and almost causing an accident. He nodded to say that he understood. When the light turned green, we were both smiling. We waved good-bye to one another, two good friends who will never see one another again. For a minute or two, neither Barbara nor I spoke. At that moment, I had nothing to say, but her look told me there was a lesson to be learned here. Her remark confirmed that I was at least right about that perception.

"There's a lesson to be learned here," she said.
"Does my new best friend who just drove off know the lesson?" I asked.
"You will have to ask him," she said.
"But I will never see him again."
"That's true," she said. "But considering that he followed us to apologize, he's not the one who needs the lesson."

So I learned the lesson that I keep learning over and over again. Each day we are confronted with seeming miscues that can lead us in the wrong direction. An open mind, vigilance, and measured skepticism will keep you from diving into a shallow pool good advice to judges and lawyers, whether reading a brief, a motion, examining a witness, or interviewing a client. You think you know everything, how things will turn out, what will happen, and then the carpet is pulled out from under you and the unexpected happens. But when you look back, you see what happened was not all that unexpected. In fact, it makes perfect sense. In extreme situations, what made seeming sense at the time, in retrospect, was foolhardy and painful to accept. Investors with Bernie Madoff come to mind.

This all leads to an inescapable conclusion: a key ingredient of life is uncertainty. In fact, the only certainty is death. Taxes used to be the other certainty, but after a review of Congress and the State Legislature, I am not so certain.

But oddly, I found that death's certainty is a good way to handle the lesson I learned from my encounter on Olympic Blvd. I gained this insight from Timothy Tosta's valuable book "#DEATHtweet," published by THINKaha (2010). The cover accurately tells the reader that the book is a guide to "A Well-Lived Life through 140 Perspectives on Death and Its Teachings."

Tosta, a land-use and environmental lawyer, is well known to Daily Journal readers through his columns and lectures about how to live a fulfilling, balanced life. Yes, this includes lawyers working in a stressful environment. I bet it also includes judges, though I might get an argument about the "stressful environment" part.

Tosta's quest to "living life to its fullest" and the insights he gained were engendered when he was diagnosed with terminal cancer. That he has been with us for close to two decades since that prognosis proves that uncertainty is pervasive. His more recent work as a hospice volunteer helped sharpen the depth of his insights.

Tosta reasons that because death is certain, "[i]t teaches us how to live in our remaining time." His book treats, or should I say "tweets," us to 140 pithy insights that one will read and go back to again and again. Each of these terse lessons resonate when applied against the backdrop of our daily experiences. Tweet 4 teaches that "[t]ruly living your life is the best preparation for death." Read on for ways to achieve this goal. Tweet 53 is one lesson I am working on to perfect, "When you no longer can change a situation, you always can change yourself." When applied to a conference with my colleagues at the court, I would add…"and you always can dissent."

Tweets 70 and 71 pose provocative questions and challenges: "If this part of your life were a sport, how would you get 'in shape' to play?" And "Can you become the best performer ever in your life's sport?" The tweets on listening help establish understanding and forging relationships, whether they be with clients, friends or loved ones.

My impression of our soon-to-be Chief Justice, Tani Cantil-Sakauye, is that she is in tune with many of Tosta's life lessons. Tweet 72 seems particularly applicable to her new role as California's Chief Justice: "Think, analyze, and formulate a program. Break things down into manageable tasks and achievable goals. Allow yourself to succeed." No doubt in my mind she will.

Tuesday, May 04, 2010

Goodbye To Gene Lees, An Extraordinary Writer

Last week a good friend of mine, Gene Lees, passed away. He was one of the nation's great jazz critics and lyricists. His output was prodigious. He was a newspaper columnist, former editor of DownBeat Magazine, an author of numerous biographies that included Dizzy Gillespie, Woody Herman, Oscar Peterson and Johnny Mercer. He had just put the finishing touches on a biography of Artie Shaw shortly before his death. He also wrote novels, essays, articles, and a sui generis jazz newsletter filled with his reflections on music, philosophy, literature, history and whatever else he found interesting.

Gene could elucidate complex ideas with lucidity and clarity. Through example, he taught me that the course title “legal writing” is a misnomer. All writing, particularly expository writing, whether legal or otherwise, share much in common. One has to write for the reader, not for the egotistical writer. The writer's well-crafted piece engages and enlightens the reader. We lawyers and judges have a good deal to learn from Gene Lees.

An example of Gene's writing appeared in a touching obituary by Elaine Woo in the Los Angeles Times, on April 24, 2010: "In his piece 'Waiting for Dizzy,' [Gene] wrote [of Dizzy Gillespie]: 'There is a gesture he has, a motion, that always reminds me of a great batter leaning into a hit. He has a way of throwing one foot forward, putting his head down a bit as he silently runs the valves, and then the cheeks bloom out in the way that has mystified his dentist for years, and he hits into the solo. When that foot goes forward like that, you know that John Birks Gillespie is no longer clowning. Stand back.'"

I never believed all that much in destiny, but through a series of events beginning in my early childhood, I think I was destined to meet the redoubtable Gene Lees.

When I was a kid, I studied the piano on and off. My parents were hoping I would be a lawyer or a doctor not, God forbid, a musician. In a previous column I mentioned that we lived at Venice beach in the 1940’s. Gas was rationed because of the war. We were not important enough to have a C sticker on our 1941 Plymouth. You had to be someone important, like a doctor, or maybe a judge, to get a C sticker. Oddly enough, an A sticker meant our gas allotment was severely rationed because use of our car was "nonessential."

My parents were friends of a married couple, the Buhais, who, as I recall, were political activists, champions of social justice. I do not remember their first names. I was only five years old. Their young daughter Harriet, for whom the Harriet Buhai foundation is named, used to babysit me when my parents went out for the evening. They couldn’t have gone far with an A sticker. I wonder if at that time Harriet had any notion that she would become a heroic lawyer for the underprivileged and the disadvantaged. At that time my goal was to get through the day committing as much mischief as possible.

Two of the great swing bands of that era were Benny Goodman and Artie Shaw. Both bands were reputed to have appeared during the 40’s at the dance hall on Lick Pier, less than a mile from where we lived. As I grew older, I became more and more interested in jazz and listened, almost obsessively, to Goodman. But later, I came to realize the extraordinary musicianship of Shaw.

Harriet Buhai went on to her calling, and I toyed with the idea of going into music. But, as I became more mature (never reaching full maturity), I made a decision. To the relief of my parents, and the music world in general, I decided against a career in music. Instead, I went to law school where, in the practice of law, I wound up doing the same thing I would have been doing as a musician: improvising late at night.

I never dreamed I would become a judge. Do you think, maybe deep in my unconscious, the A gas ration made me strive for a judicial appointment?

At some time in my early judicial career I became friends with Ron Schoenberg, now a retired judge of the Los Angeles Superior Court. Ron’s father was renowned composer Arnold Schoenberg, a colossus who revolutionized music in the 20th century with the 12-tone system. When he left Austria in the 1930’s to escape Hitler, he settled in Pacific Palisades. Because he was a foreign national, U.S. laws prevented him from immediately receiving royalties for his compositions. Artie Shaw pledged his royalties to the government as security until Schoenberg could be cleared to receive the royalties due him. Ron and his brother Larry, now a retired math instructor, became friends with Shaw. Because of my interest in jazz, the Schoenbergs introduced me to Shaw and we became friends.

My "cousin" through marriage, the great jazz pianist and arranger Ray Sherman, sent me a gift subscription to Gene's "Jazz Letter," which contained an incisive three-part series about Artie Shaw. I e mailed Gene about my impressions of Shaw which he published. I then discovered Gene lived in Ojai, not far from the courthouse where I preside. Gene, his wife Janet, their friend, violin virtuoso Yue Deng, and I became friends and shared a warehouse of stories over a series of lunches.

Gene's views on journalistic writing are useful to lawyers and judges. I usually follow a self-imposed rule that if a sentence contains more than 25 words, it is probably too long. Gene told me he worked for a newspaper that had a similar rule with an eleven-word maximum. These rules at best are guidelines, and exceptions often predominate. But they keep us mindful of the virtue of simplicity and of making the piece an organic whole that cannot be cut.

When Gene was a columnist on the arts for the Louisville Times, he wrote his pieces so they could not be cut from the end, a common practice in newspapers. He went the further step in crafting pieces that could not be cut at all. Good advice to lawyers writing motions and briefs, which should be brief. Gene praised writer Jack Woodford who styled himself a "hack." Maybe so, but Gene said he learned from Woodford that whether you are writing fiction or nonfiction, you should think of a "chain" structure to the narrative. "By the end of the first chapter you must pose a question that the reader wants answered. In the next chapter you satisfy that desire but not before setting up another question and so on." Of course we do not write novels…. I take that back. It seems as if every other lawyer and judge here and there is working on a novel. Heaven help us.

But what judges and lawyers must keep in mind is Gene's dictum that we have little space in which to capture the reader's interest. In a short story, or a trial or appellate brief, some say the writer must capture the reader's interest in the first paragraph. Gene said, "The hell with that. You've got one line." He recalled his favorite opening lines. Melville's "Call me Ishmael," and Rafael Sabatini's "He was born with a gift of laughter and a sense that the world was mad." Gene wrote a short story he sold to a major magazine that began with this line: "There were those who thought he was mostly a son of a bitch, but I thought he was all son of a bitch."

These opening lines surely capture the reader's interest. But I advise appellate lawyers in their briefs not to use Gene's opening line to describe the trial judge. We are not writing fiction, though some briefs I have read unfortunately fall in that category. But in relating the facts of a case, we could do well following Gene's example.

I close with a goodbye to my friend. I will miss hearing his wonderful stories over lunch, but he will always be in touch through the enduring works he leaves behind.

Tuesday, April 06, 2010


Courts interpret the law. It is expected, or at least hoped, that they do so in a way that provides the public, from which come litigants and their counsel, a reasonable degree of predictability, if not certainty. From this dictum one would expect that surprise would be an unwelcome guest whose brash presence could be embarrassing to counsel advising their clients. But to quote Heraclitus, the Greek philosopher, which I do, with annoying regularity, “Northing endures but change.” And because the law is not static and immutable, and therefore subject to Heraclitus’ maxim, it should come as no surprise that judicial decisions are often surprising. But what is an unwelcome surprise decision to some may be a decision hoped for, if not expected, to others. “Surprise,” like obscenity, is in the eye of the beholder.

In his confirmation hearing, Chief Justice Roberts saw his role as a referee calling “balls and strikes.” But that assumes that laws, like the rules of baseball, are fixed, and judges merely decide whether the litigants’ conduct, like a player's swing at bat, is a ball or a strike.

Who would have believed that after 100 years of precedent, the United States Supreme Court would have ruled in Citizens United v. Federal Election Commission (2009) 130 S.Ct. 876 that corporations are the same as individuals for First Amendment purposes. Or to some, assessing the court’s proclivities, the ruling was no surprise.

In any circumstance, I dislike being on the receiving end of a surprise. I dread the thought of ever being the “victim” of a surprise birthday party. I have seen the hapless birthday person walk into his home with a bag of groceries, and the expectation of a quiet evening reading Marcus Aurelius’ "Meditations," fumble for the light switch, then nearly have a heart attack when 75 screaming voices yell, “Surprise!!”

I do not relish helping plan a surprise party, but on occasion I am impressed for duty. I recall helping plan a surprise party for a friend who loved Orson Welles’ masterpiece, "Citizen Kane." He could recite all the lines from the movie by heart. As he unsuspectingly walked into his darkened living room, I induced all the party goers to shout, “Rosebud.” As we revived him, he was too startled to even register what we had yelled.

I have been on the receiving end of surprises now and then during my 35 years on the bench. I am not talking about the inevitable reversals and the occasional affirmances from higher courts. When I was “elevated” (sounds like a religious rite) from the Municipal to the Superior Court, a public defender, and good friend, Linda Schwartz planned a courtroom surprise for me. I took the bench for the afternoon calendar and called a case the clerk had put in front of me. A young woman, dressed in tights, came before the bench and sang and danced to music on her tape recorder. The original lyrics recounted my adventures as “King” of the traffic court and “Dispo” artist in the criminal misdemeanor calendar court. Everyone in the courtroom applauded. I held her in contempt.

Shortly thereafter I was invited to a party given by two public defenders. One of them, let’s call her S., told me the party was a surprise, but not a surprise birthday party. The surprise was for the guests, because this party would be her surprise wedding, a wedding that she asked me to perform. She extracted a promise from me that I not tell anyone about the surprise. I wasn’t sure if this included the groom. I was relieved when during the ceremony he responded, “I do,” to the all-important question I put to him.

This wedding was truly a surprise to all the guests, including the parents of the bride and groom who the couple thoughtfully invited. At the appropriate time, I called the guests into the backyard and quieted them down. Pandemonium broke out when they realized the ceremony I was performing was not a skit, but the real thing. The congratulations and hugging lasted the rest of the night. The couple asked if I enjoyed participating in this bit of deception. I said did, but asked myself, “What about wedding presents?”

I also performed a surprise wedding for a couple I knew who were in “couples group therapy.” I performed the ceremony at the close of one of their sessions. The weekly sessions were conducted on Tuesday evenings by a married couple, both of whom were psychiatrists. The group consisted of about five or six couples who had been attending these sessions for a few years. They met in the therapists’ office in a nondescript building on Wilshire Blvd. in Santa Monica. The couple for whom I was to perform the wedding ceremony asked me to “drop in” at 9:30 p.m. at the close of the session.

I parked in front of the building at 9:30 sharp. The prospective groom, let’s call him D., was waiting for me in front of the building. He was the only person in sight. It was eerie seeing him there, his shirt sleeves folded back above his wrists, his tie loosened below his open collar, a lone figure, bathed in a shaft of light coming from the empty lobby. I had an uneasy feeling as I approached him. It was like walking into an Edward Hopper painting.

He greeted me and we took the elevator up to the 10th floor. “We are having a little celebration,” he said. “It’s Marty’s birthday.”

“It’s not a surprise party is it?” I said, trying to be light hearted.

“No,” said D. “Only our marriage.”

We walked a short distance down the empty corridor and D. opened a door. I walked into a brightly lit room that was furnished like a comfortable den, with couches and easy chairs. The couples were talking and laughing, drinking wine and munching on birthday cake. They looked up from their reverie and suddenly the room turned completely silent. I was apparently the first outsider ever to breach this inner sanctum in which I imagined the most intimate practices, inner feelings, fantasies, and provocative stories were revealed.

D. broke the ice. “This is Art,” he said, and walked to the other side of the room. There was an empty chair nearby. I sat down. They were all staring at me, not saying a word. An attractive blonde woman with a cutting knife in her hand finally said warily, “Art, care for a piece of cake?” “That would be nice,” I replied. She cut me a piece, carefully placed it on a plate and handed it to me. “It’s Marty’s birthday,” she said. “Thanks,” I said. “And Happy Birthday to Marty.” Of course, I didn’t know which one was Marty. The conversation among the couples resumed, but was now more like a murmur. I munched on my cake and even accepted a glass of wine.

A man came over to me. I think it was Marty. He was about to ask me a question, when I noticed D. give me a high sign. I put my cake down and got up from my seat and said, “Excuse me.” I walked to the front of the room where D. and S., his soon-to-be-bride, were now standing. All eyes were on us and everyone stopped eating and drinking. I welcomed everyone there, enjoying that brief moment of rhetorical irony. I then began the wedding ceremony. They caught on, and the place erupted in cheers, tears, and shouts of joy. The ceremony over, I took my leave. They gave me an extra piece of cake to take home.

Both of these surprise weddings occurred many years ago. I am pleased to inform you that my wife Barbara and I are good friends of the surprise wedding couples, and that both couples are still happily married.

But despite the happy outcomes of the surprise weddings I just related, surprise Supreme Court decisions can be unnerving. Reversals from a higher court can cause a lower court judge (that includes me) to say or think, “I knew it.” No matter, it still may be a surprise. Affirmances should not be a surprise, but merely a validation that you on the lower court got it right. But still, the lack of certainty brings an element of surprise to decisions rendered by higher courts.

But a big surprise decision can be disquieting. It causes one to wonder what happens next. Getting back to the Citizens United case for example: If corporations have the same First Amendment rights as people, perhaps next corporations will be able to sue for loss of consortium. Under the rationale of Citizens United, this should come as no surprise. Loss of the capacity to do what some corporations excel in just might be compensable.

Monday, March 01, 2010

Cutting It Short

I was working out with my trainer, Shane, and he told me about a job opportunity for which I was well suited. Please no comments about having a trainer. When I was a kid, we didn’t have trainers, life coaches, Pilates instructors, wardrobe consultants, nutritionists, party planners, and the cadre of “professionals” we require to manage our lives.

But that was then. Now, I have concocted a rationale for working with a trainer. It “boosts” my energy level and sharpens my mind so that I can track attorneys’ complex arguments. This in turn enables me and my staff to craft the important decisions that are a part of the weave and nap that comprise the law’s fabric of our great state, the hallmark of a civilized society. You don’t buy it? Then how about this? Working with a trainer builds core strength, keeps my immune system robust, and my bones dense and strong. Buy that? You acknowledge that reason is more plausible but you are still unconvinced?

O.K. I will drop the pretense. The true reason stems from my affinity for dwarfs. This is because I am short, chronically short. I have been this way all my life, and now, with advancing age, I am getting shorter. Who knows, in another few years, I could disappear. I was hoping that maybe Shane could stretch me out so that I don’t become microscopic. But the job opportunity he offered me gives me pause. A friend of his made a movie and, to promote it, advertised for a dwarf to dress in a costume and shoot T-shirts out of a gun. He tells me it pays well. I told him I would think about it. It might detract from the dignity of the judiciary.

When I was a child, about four years old, we lived on the top floor of a hotel on the beach in Venice, California. But, even then, the characters I remember in my life could have come from Venice, Italy, straight out of a Fellini movie. This was during World War II. They say that people born during that time are on average much shorter than people born today…after they grow up.

The hotel is still there, and on Thursday mornings, when I bike down to Venice with a group of friends, I point it out. They are tired of hearing about it, but not tired of hearing about what life was like then for a four year old. You could not go on the beach at night, and you had to draw the window shades that faced the ocean. If even a sliver of light shone through the window, there would be a knock on your door and a volunteer air raid warden would tell you to pull your shade all the way down. Japanese submarines had fired upon an oil refinery in Goleta.

Our hotel was on what we called “the front.” It was like the boardwalk on Coney Island, only there were no boards. It was made of cement and was a place for people to walk and for “trams” to carry passengers from one place to another. It extended for several miles from Santa Monica to Venice. There were piers in Santa Monica. One was a fishing pier that extended out into a boat harbor that is no longer there. Further south was an amusement pier in Ocean Park, the forerunner to "POP" built in the 1960’s. Next to that pier was a short pier called Lick Pier on which was the Aragon Ballroom where the Lawrence Welk band played relentlessly. A few miles south of that pier was Venice Pier at the base of which was what we then called a motion picture theater. It was owned by a husband and wife, both of whom were dwarfs. I regret to say that the pier, the motion picture theater, and the dwarfs are gone.

Husband and wife would walk along the “front” in the morning on their way to their theater which they opened around noon. Every morning they would stop in front of our hotel to rest awhile on one of the benches that lined the “front.” I would watch them climb up on the bench where they would sit side by side holding hands. This image is seared into my brain and it gives me comfort that I can call it to mind at will.

So I have this affinity with what is short. I cheer for the Lilliputians. One of my favorite books is “The Dwarf” by Nobel Prize winner, Par Lagerkvist. True, that dwarf was evil incarnate. But I view him as a metaphor for evil more than a real live person. One of my favorite actors was Billy Barty. He founded an organization championing the cause of what he described as the “Little People,” with the emphasis on “people.” I did have one unfortunate experience with a dwarf when I was about 10 years old. He was dressed in a Donald Duck costume and I pulled on his bill. He took off his head and bawled me out. Scared the hell out of me. I’m over it now.

Neither my wife, who is even shorter than I, nor I are prejudiced against tall people. Our best friends are tall. They have to look down at us, but they assure us they look up to us figuratively. I try not to overcompensate in my profession. I treat tall lawyers well. My wife and I are big basketball fans. The important thing is to think tall.

Short, by itself, is neither good nor bad, but in some contexts it can be horrendous. California’s current budget shortfall, for example, has shortened some tempers in the judiciary. But civility has not waned in two judicial leaders, both of whom are tall in stature, intellect and integrity. One can look up to both of them literally and figuratively.

We have all heard and read about Los Angeles Superior Court Presiding Judge Tim McCoy’s concerns about the judiciary’s budget deficits and his predictions about courtroom closures and substantial employee layoffs. He takes issue with Chief George’s allocation of a limited judicial budget. In particular, McCoy would like to see funds currently allocated for courtroom construction temporarily diverted to the Los Angeles Superior Court and funds for the computerized California Case Management System put on hold.

The Chief and his staff point out that the deplorable condition of many courthouses throughout the state renders them unusable. Construction and repairs give us safe courthouses and provide much-needed jobs. And the costs for the case management system are on a “pay-as-you-go” basis. Implementation of the program statewide has been deferred beyond 2013.

Many parties affected by budget cuts have legitimate concerns. I am sympathetic to Judge McCoy’s worries, but the alarms he raises publicly may be, at this point, more problematic than productive. In an editorial on February 10, 2010, the Los Angeles Times acknowledges that McCoy and the Chief are the “most polite of disputants,” but cautions that “ angry judges and turf-defending court officials,” backing either George or McCoy, threaten “to make all of them look more adolescent than judicial.” The editorial points out that "the size of the budget problem is not yet clear, and won’t be before the state’s May budget revision.”

We in the judiciary may have differing views on a variety of issues, but we have not been fractious like many of our legislative colleagues of recent times. As the Times editorial points out, the courts do not have a strong public constituency, and “[a] court system at war with itself is ill-equipped to make its best case to the Legislature for sufficient funding and in the court of public opinion for respect and continued independence.”

I would like to see Judge McCoy, who represents the largest trial court in the country, sit down with the Chief, and representatives of the Administrative Office of the Courts, so that each side could understand and fairly consider facts that support the other’s point of view. That is what judges are trained to do.

Attorney Tim Tosta might have a good approach for such a meeting. He survived what had been diagnosed as incurable cancer. This life-threatening experience changed his life and his approach to living, solving problems, and practicing law. In a column that appeared in the Daily Journal on January 11, 2010, he described his efforts trying to help a hospice patient. He completely misinterpreted what the struggling patient was trying to tell him. He finally realized his premise was faulty and then was able to provide the comfort the dying patient was asking for.

The approach he used with the patient could well be used by all of us dealing with any problem, including the budget crises. It is easy to make mistakes about what we observe. Tosta suggests that we not “forego the opportunity to test” what we think is the “truth.” That gives us the opportunity "to create solutions more consistent with [one’s] observations and experience.” Tosta warns that “regrettably we are often so filled with reactive behavior that we fail to make important inquiries.”

The budget shortfall requires that we adopt a view to what is best for the state overall. The Chief has fought tirelessly on behalf of the judiciary throughout the state without showing favoritism for any particular court. It is not an easy balancing act, but cuts have to be made. The budget shortfall is critical, but it is also fluid. Perhaps a solution could be forged out of such a meeting. The sky above may be cloudy, threatening a menacing storm, but that does not mean it is falling.

However this turns out, one thing is certain: budget shortfalls require sacrifice. I, along with most judges in the state, have taken a voluntary cut in pay. That makes me short both in cash and height. I thought again about that job shooting T-shirts out of a gun to supplement my paycheck. How could it bring ridicule to the judiciary when I will be hidden from view? But I used Tosta’s approach to the problem and decided against it. Some snotty little kid might mess with my costume, and I just might take of my head and give him a piece of my mind.

Wednesday, February 03, 2010

My Courtroom Is Not Dark

476-2151. That is my old phone number. The phone company disconnected it when I moved to a new address 39 years ago just as we began establishing area codes. I do not always remember what I did a few days ago. Still, it is not extraordinary that I remember my phone number from decades ago. The phone, then, as today, was a vital link to others. And, as today, we “gave” our numbers to special people, but there were no cell phones to store numbers. Those special phone numbers from the past stay imbedded in memory because they were “dialed” so often and because they kept us in touch with people who were important in our lives. I still remember some of my friends’ phone numbers I “dialed” 50 years ago.

But a phone number was merely the code that made the connection with others possible. Many of the conversations—the arguments, the expressions of love, anger, compassion and sympathy, the exchange of ideas, profound and commonplace—linger in our memories because they are significant parts of the unique story of our lives. A transcript of some may be prosaic in isolation and seemingly beyond recall. But a momentous event in the present can bring them to the surface where they can be seen with striking clarity for their special significance.

One such phone call from several years back recently was called to my mind. It was from my friend, Federal District Court Judge Florence Cooper. She said, “Art, thanks for introducing me. We had a wonderful conversation.” This unremarkable short call was not about a conversation between Judge Cooper and me, but I doubt I will ever forget it.

A little history will explain. Approximately 20 years ago, I, along with others, formed the West Los Angeles Inns of Court. I recruited several lawyers and judges, including then Superior Court Judge Ronald Schoenberg. He joined with his son, Randy, a recently admitted lawyer. Years later Randy assumed the role of David when he challenged Goliath, the Austrian government, in a celebrated lawsuit over ownership of a group of paintings by Gustav Klimt. The Nazis had stolen the pieces from an Austrian Jewish family. After the war, the paintings came into the possession of the Austrian government.

One painting, in particular, the portrait entitled Adele Bloch-Bauer I, was described by Christopher Knight of the Los Angeles Times as the "singular 1907 tour de force, … among the greatest early Modern paintings now in the U.S…. [I]t ranks as a destination work—the kind one travels just to see—comparable to Pablo Picasso's Les Demoiselles d'Avignon at New York's Museum of Modern Art ...."

Randy represented Maria Altmann, the niece of Adele Bloch-Bauer. Ms. Altmann fought to have the Klimt paintings restored to her, the last surviving family member. Her attempts to obtain redress in Austrian courts were not successful. But Randy took another tack. He filed suit for Ms. Altmann, when she was in her late 80's, under the Foreign Sovereign Immunities Act in the United States District Court, Judge Florence Marie Cooper Presiding.

Did Ms. Altmann have standing to sue the Austrian government? Judge Cooper said she did. So did the United States Supreme Court.

Owing to Ms. Altmann’s advancing age and the passage of years over which the appeals would stretch, whatever the outcome, Randy and Ms. Altmann opted for binding arbitration before three arbitrators in Germany. The decision was unanimous in Ms. Altmann's favor. The five Klimt paintings, including the stunning portrait of Adele Bloch-Bauer I, were returned to the rightful owner.

I attended a special showing of the paintings at the Los Angeles County Museum of Art where Randy introduced me to Ms. Altmann. As I was congratulating Ms. Altmann, I noticed out of the corner of my eye Judge Cooper entering the gallery. I grabbed hold of Judge Cooper’s arm and brought her over to Ms. Altmann. “And here’s the judge who made it all possible,” I said. They hugged and sat down at a table and became engaged in animated conversation like two friends who have known each other for years. I still see so clearly the two of them, talking and laughing, two people of great courage and character, who in quite different ways demonstrated how the courts can be a potent force for justice.

It is so difficult for many of us accept the terrible news that Judge Cooper died on January 15, 2010. She was a friend whose warmth, kindness, humor and brilliance touched everyone she knew. We had dinner many times throughout the years with a small group of friends, all of whom shared a disdain for formal clubs. We formed our own anti‑club dinner club, dubbed “CALJIC I" by its president, criminal defense attorney Bob Schwartz. Bob takes pride in his inability ever to establish order at our meetings. Our bylaws prevent me from disclosing or even summarizing our conversations. No matter, the bylaws were not written and the conversations were hard to follow with all the interruptions and laughter.

Florence Cooper proved that an academic pedigree is not an essential ingredient to be a great judge. She graduated top of her class at the Beverly Rubens Law School, now called the Whittier Law School. No doubt, Beverly Rubens was one great law professor. And Florence and one of her best friends and classmates, Miriam Vogel, who graduated magna cum laude, were stunningly brilliant students. Miriam, now a leading appellate practitioner, became one of our state’s most respected justices on the California Court of Appeal. To hear Miriam recount their days in law school, studying for the bar, pursuing their careers and raising their families is both hilarious and touching.
Through example, Judge Cooper made us better at what we do. She showed judges what it is to be the best possible jurist. One could not help take notice. Ninth Circuit Court of Appeals Judge Arthur Alarcon, for whom she clerked when she graduated from law school, described her as one of the finest jurists in our country. He was so impressed with her work in his chambers that he acknowledged that she had become part of his brain. And that is one impressive brain. Exceptional people like Judge Cooper stay with you forever.

A typical example of how other judges viewed Judge Cooper is found in these words written by California Court of Appeal Justice Elizabeth Baron (Ret.). Upon learning of Judge Cooper’s death, she wrote so eloquently: "I have known Florence Marie Cooper for 30 years and, to me, she was the quintessential judge; the purest and most perfect example of what it means to be a judge. From holocaust victims to whales to government malfeasance, she was committed to overseeing a process that would render an outcome based on a fair and impartial adjudication of each case. Her crushing caseload never prevented her from reading every document presented to her or analyzing each issue in depth. She provided the foundational and emotional support for her family. She was loyal and true to her friends. She sang like an angel, played the piano and knit sweaters for us. Her death leaves a gigantic hole in the fabric of our legal world and in my life."
Judge Florence Marie Cooper remains with us through the legacy she leaves. With apologies to Mary Frye, who after the death of a dear friend is reputed to have written a moving poem in 1932, entitled "Do Not Stand at My Grave and Weep," I close with a poem inspired by Ms. Frye and Judge Cooper.

My Courtroom is Not Dark

My courtroom is not dark, the door opens wide,
I have not gone, I still preside.
I am the judge, the judge who is fair,
I am the judge, the judge who cares.
I am the judge before whom you rise,
Yet, the judge who is humble, who strives to be wise.
I am the judge intent and kind,
The judge not afraid to change her mind.

I am the judge who loves the law,
Who knows the record, sees an argument’s flaw.
I am the judge who does not glower,
The judge who uses, not abuses her power.
I am the judge all can trust,
The judge who rules as she can, and rules as she must
My courtroom is not dark, the door opens wide,
I have not gone, I still preside.

Monday, January 04, 2010

A New Year's Resolution

When I was a kid, rarely did we see “homeless” people wandering the streets, and never did we see someone putting cardboard boxes together to make a shelter to sleep in the park. The occasional vagrant begging for a handout was called “a bum” or “a drunk.” I recall when I was a college student, a man, unshaven and wearing dirty clothes, approached a group of us walking down the street and asked for money. One of my friends told him to get a job. The man swore at us as we walked away. That scene, fifty years ago, still haunts me. I wasn’t sure how to respond. Jobs were much more available then, but this particular needy person may not have been capable of getting a job, and, perhaps, had we given him money, he might have spent it on booze. But these rationalizations give me small comfort.

Now, fifty years later, on occasion I either give a few dollars to a homeless person or order him or her a meal. Notice, I said “on occasion.” I am not sure why sometimes I do and sometimes I don’t. About twenty-five years ago, when I was newly appointed to the Court of Appeal, a group of my colleagues and I were walking to lunch on Wilshire Blvd. A pathetic looking homeless person standing by the curb asked us in almost a whisper if we could spare some change. I doubt my colleagues heard him, but I did. I walked over and gave him some change.

One of the justices gently chided me for giving him money that he was sure would be spent on alcohol. He suggested good naturedly that I was a typical liberal. I responded that even alcoholics have to eat. A psychiatrist friend of mine scolded me for giving money to a homeless person. “He is an alcoholic. He will just spend the money on booze.”

Maybe they are right. Perhaps it is better to donate time and money to a homeless shelter than to offer random individuals sporadic palliatives. Yet, it is hard to ignore the lady with the dog at the freeway entrance at 11:00 p.m. or the elderly couple huddled in the front alcove of a closed store on a cold evening.

This dilemma spawns so many questions. Was I a liberal when I gave money, but not a liberal when I didn’t? Is there such a thing as a sometimes liberal? The term “liberal” was effectively used in George W. Bush’s campaign for President as a contemptible trait found in people who were not worthy to govern.

But what is a liberal? Someone who supports change for the good of everyone in society? Someone who supports justice for everyone? Do not conservatives aspire to the same goals? I have heard conservatives complain that liberals theorize about concepts, but can be cranks who tyrannize their spouses, offspring and friends. And I have heard liberals complain that some of their conservative friends are kind and generous on a personal level, but have no compassion or concern about specific groups of people, like, for instance, the homeless or the uninsured.

Whatever those terms connote, it looks like neither conservatives nor liberals have exclusive rights to the moral high ground. David Brooks, who some consider a conservative columnist, wrote a month or two ago in the New York Times about notions of morality. Brooks notes that Princeton Professor Kwame Anthony Appiah, in his book, Experiments in Ethics, posits that decades of experiments have led psychologists to question traditional philosophical notions of morality. We act in moral ways sometimes, but not always. We can be generous and courageous in some situations, and downright despicable in others. And this goes for liberals and conservatives.

Appiah acknowledges that there may be a seeming conflict between the philosophical conception of a consistent moral character and the results of scientific experimentation that show otherwise. But Appiah contends that moral philosophy and scientific empiricism are compatible and can have a “conversation.” The recent debate over health care and other public issues leads me to believe a “conversation” is not taking place between liberals and conservatives.

And this brings me to two unabashed liberals, both friends of mine who passed away within one day of each other. I bet that everyone who knew these two remarkable persons would agree that they both embodied a consistent moral persona that I am certain scientific experimentation would have verified.

I speak of activist Alice McGrath and civil rights lawyer Bob Berke. I was fortunate to have spent time with both of them, just days before their passing.

Alice became famous for her fortitude and commitment to justice as Director of the Sleepy Lagoon Defense Committee. The play, Zoot Suit, by Luis Valdez, tells the dramatic story of this famous trial in which twelve Mexican-American men were tried for murder in 1940. The convictions were reversed in People v. Zammora, 66 Cal.App.2d 166 (1944). The trial was infected with racism and hostility towards the defendants. The appellate court found the evidence insufficient to show defendants conspired to commit murder (id. at pp. 201-202) and chastised the trial judge for disparaging remarks he made about defense counsel in the jury's presence (id. at p. 215).

Alice, diminutive, stunningly beautiful, possessing a will of iron, but always with a twinkle in her eye, fought for social justice all her life. In her 80's, she developed a legal aid program for poor people in Ventura and led numerous study groups to Nicaragua and Cuba. In 1991, Alice accompanied the justices of my division of the Court of Appeal and others from various disciplines on such a trip to Cuba.

We visited the courts and law schools. Alice promoted and encouraged frank discussions with judges and government officials about our differences. Alice and I had many lunches together during which we engaged in animated discussions about literature, politics and religion. And then I lost this great friend. She died November 27th at the age of 92.

Bob Berke was one of the great civil rights lawyers of our day. An indefatigable worker, he refused to give up. I first met him when he was a public defender in my trial court in the 1970's. Like Alice, his commitment to justice was built into his DNA. Bob is credited with helping establish case law allowing criminally charged defendants discovery procedures into police misconduct. He was victorious in public interest lawsuits and secured reversals for defendants whose convictions were based on suspect jailhouse informant testimony. He was handsome, vital, warm and engaging. Again, like Alice, he was someone you could not help but like. He and I had lively discussions about the law, the courts and politics. And a few weeks after our last discussion, he died quite suddenly on November 28th from a form of encephalitis at the untimely age of 61.

The deaths of these two vital individuals take me back to David Brooks' insightful observations. At the end of his column, he remarks that Spike Jonze's film, Where the Wild Things Are, illustrates how the difference between the philosophical and psychological may find resolution. Max, the protagonist, quells the wild impulses within him, but not through the force of reason and self-analysis. These tools are often no match for impulses and instincts that come from evolution, culture and upbringing. Instead, weakness, fear and selfishness are subdued when Max is focused on building a fort or being involved with someone else. Brooks theorizes that "it is possible to achieve momentary harmony through creative work."

And that explains how Alice McGrath and Bob Berke lived their lives. Their moral compass never lost its course because they directed their dissatisfaction with injustice through action, not ranting, not verbal attacks, but doing. They took time to consider other points of view and responded to their adversaries with civility--a good model for all of us, for liberals and conservatives alike. I would like to see everyone adopt this approach as a New Year's resolution. By "everyone," I include politicians and judges everywhere, even in California. And when you ponder what to do about a homeless person in distress, you will make the right decision.