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.