Wednesday, November 09, 2011

The Tops - Part II. 100 Our Of 7 Billion

I can’t help it, but when I follow a car with a bumper sticker that states: "My kid is an honor student at Grover Elementary School," I am tempted to rear-end it. Can you imagine marketing your kid? And this takes me to my last month’s column.

We explored the corrosive effects of the "Top 100 Lawyers." We could include the "Top 100 Anybody." These exclusive clubs, which often are undisguised marketing devices, do not produce salubrious consequences for numbers 101, 102 and those after, continuing to infinity. Gnashing one’s teeth is not healthy. Why am I writing about something we have already explored? Bear with me and you will understand. I had posed an inquiry: "Top according to whom?" If I had said "according to who?" doubtless I would not be considered for inclusion in the list of the "Top 100 Grammarians."

Besides not knowing who makes the selection, another troubling aspect of these lists is that it is just as hard on those in the "top" as those not in the top, and maybe even more so. The Daily Journal list of the Top 100 Lawyers is not forever. It is a yearly undertaking. Assume you are selected. The year of self-satisfaction, exhilaration, and smugness disappears in an instant when the next year’s list is published sans that one important name yours. This demoralizing moment often lives on for years.

So-called friends and colleagues cannot stop themselves from asking in the most innocent manner that scarcely hides their joy, "So why were you not included in the Top 100 this year?" As if you knew. And there is bound to be the superfluous declaration that sneers, no matter the tone in which it is voiced, "So looks like you didn’t make the top this year," or the niggling, "So you were kicked out of the top this year."

This does not happen with other honors. Win an award, and most times, everyone knows it is a one-time affair. That Madame Curie, Linus Pauling, John Bardeen and Frederick Sanger were awarded the Nobel Prize twice is hardly a put-down for those who won the award only once. Many have won an Academy Award more than once. It is not a source of embarrassment for those who have not. Even the obnoxious bumper sticker I mentioned earlier is not as bad as being in the Top 100. Putting aside the boastful advertisement, "My kid is an honor student," and the implied message, "Your kid isn’t," to most people, the kid is anonymous. And if the kid doesn’t make the honor roll one year, the braggart parent will likely not peel off the sticker and no one will know the difference. I still see "Al Gore for President" stickers on old cars.

In addition to not knowing who picks the Top 100, my frustration also stems from not knowing what standards are used to make the selection. I have heard that the criteria used to determine the Daily Journal Top 100 Lawyers are written in Enigma code. Advanced Enigma-decryption techniques were unsuccessful in breaking the code.

After publication of my last column in October, I was heartened by the numerous sympathetic e-mails I received, including many who had been included in the Top 100 Lawyers and some who had been listed in some organization’s list of the Top 100 Judges. They all swore to me under penalty of perjury they had not a clue how they got there. That helped me cope with and get over the "Top 100" phenomena.

But no sooner had I recovered, when in mid-October, I received the Daily Journal supplement featuring the "Top 100 Neutrals." I must register objections on more than one ground. First, the term "neutral" calls to mind surgical procedures veterinarians perform on cats and dogs. Yes, I understand that "neutral" means free of bias or interest. From this do we conclude that those "neutrals" who are not in the Top 100 are biased in some manner?

You might question why I should be so greatly perturbed over these Top 100 phenomena. To be frank, I feel it breathing down my neck. You don’t think that being on and off the Top 100 Judges list hasn’t taken its toll? And what if I retire and become a…a…I can barely bring myself to say it… a…neutral?

To make matters worse, about a week after the Daily Journal published its list of neutrals, another event occurred that brought even greater pressure to bear on the Top 100 phenomena. On Oct. 31, the world’s population reached 7 billion. This means being in the Top 100 is even more difficult to achieve than ever before. When the world population was a measly few hundred million, being in the Top 100 was not as big a deal. More of us had a chance. Now it is even harder to be in the Top 100, and harder to stay there. With 7 billion people in the world, the odds of my being a Top 100 neutral are not promising.

This means if I ever retire, and I have no plans to do so in the near future, I may have to forego becoming a neutral. People will think I am biased if I don‘t make the Top 100.

I may have to look for other work. I would like the work in some way to relate to the law. I read in The New York Times about a guy who New York detectives call whenever they need "fill-ins" for line-ups. The money is not all that good, but it would be something different, sort of like being an extra in a movie. It’s not hard work, it relates to what I do, and I wouldn’t have to memorize lines unless maybe say something like, "Give me all your cash," or "Don’t nobody move."

I doubt I will get much work because not all that many people with AARP cards commit violent crimes. But with the bad economy, you can never tell. With my luck, however, I bet I would be fingered as the culprit and wind up doing time for a crime I did not commit. That could get me on a special category for the Top 100 Retired Judges list.

California Lawyers Are The Tops Part I

Today's column is about something all of us in the legal profession know well, "erratum." When spoken, it sounds euphonious. "Erratum," as you all know, is a fancy Latin word for screw-up. But first a parenthetic observation followed by a question. It is permissible to say "screw-up" in any venue. Its ubiquitous counterpart is used with abandon in HBO dramas, and is apparently an essential expletive for stand-up comics. Yet, it is eschewed in the commercial media, and shunned in some refined circles. Why is that?

Now back to the subject. Erratum is an error or mistake. I wade through a brief the size of a telephone book and . . . . Sorry, but here is another interruption with a question from a young law school graduate, "What's a telephone book?" Answer, "Imagine taking all the words from War and Peace on your Kindle or iPad and printing them on pages and binding them together in a book." Follow-up question from same young graduate, "What's War and Peace?" Answer, "Look it up on Wikipedia."

Once again, back to the column. I read… to be more accurate, I slog through the turgid prose of a humungous brief drafted by a lawyer or, more likely, a committee of lawyers. A week later, I find on my desk a slender binder bearing the same caption as the oversized brief I tackled the previous week. Printed on the cover of this thin, seemingly innocuous binder is the dreaded word "Errata." Oh my heavens, the plural of "erratum."

The errata or mistakes are listed in several pages referencing sheets or pages in the original brief. The errata brief may point out that a certain number of cases cited were depublished, or never published in the first place. In any event, they are not citable. One great signature erratum that makes judges cower is the lawyer's neglect in failing to insert the word "not" in many seemingly affirmative statements, thus changing the entire meaning of the legal argument.

I imagine lawyers find it annoying to hear judges complain about their errata. So today's column is, among other things, about a judge's errata, to wit, my own.

Like most of my columns, last month's column was about many closely and tightly related subjects, like MICRA, California's Medical Injury Compensation Reform Act, and the Los Angeles Lawyers Philharmonic. Because of a "typo" (no excuse), I stated that MICRA limited non-economic damages to $25,000. Of course, the amount is $250,000. Many careful readers caught the erratum, including Los Angeles Superior Court Judge Alan Goodman. But he reasoned that my "typo" was not really an error. The Legislature's failure to raise the non-economic cap from the inception of MICRA in 1975 makes its present value around $25,000. Judge Goodman is a brilliant and creative jurist.

My next erratum occurred when I attended the Daily Journal reception for the "Top 100" lawyers in California at the posh Beverly Hills Hotel. I pulled up to the parking valet who opened the driver's door for me. As I emerged from the car, the valet quickly opened the back door, skillfully pulled my coat off its hanger, and effortlessly slid the sleeves of the coat up my arms that I had conveniently stretched out in parallel position behind my back. This was a class event.

I dodged a Lamborghini and side-stepped a Rolls-Royce competing for the next attendant. I avoided eye contact with the lawyer protesting at the entrance to the hotel. His placard read, "UNFAIR TO ME, THE TOP 101st LAWYER IN CALIFORNIA." Because I had arrived early, I dropped in for a drink at the swank Polo Lounge before attending the reception. While sipping a cocktail and feasting on a bowl of guacamole, my idle thoughts led me to ponder how a lawyer makes the top 100. After receiving the check for my drink and the avocado, I lunged from the Polo Lounge.

Was it the exorbitant amount of the check that distracted me and led to my second erratum? I went to the table at the reception desk to collect my name tag. Would the tag read, "Justice Arthur Gilbert," "Presiding Justice Arthur Gilbert," or "Star Columnist Arthur Gilbert"? No matter, the vivacious young woman seated behind the reception desk could not locate my name tag. I had no choice but to settle for a stark white paste-on tag upon which she scrawled in thin blue ink, "A. Gilbert." I was assigned table #11. A photographer took my picture. I thought it strange that I did not know a soul there. At almost the same time, it dawned on me, and the effervescent woman at the reception desk, that I was at the wrong reception. I, in fact, had not contributed $100,000 to the charity for which the dinner at this reception was being held. They removed my place at table #11 and deleted my photograph.

I found my way to the Daily Journal reception down the hall. I went to the reception desk. Couldn't find my name tag. But that didn't matter. I was glad to be there. I have an affinity for this event because I have been told that I am one of the Daily Journal's top 100 columnists. Rumor has it that I am No. 99.

Again the question popped into my mind, how does a lawyer make the top 100? I asked the Daily Journal's distinguished editor, David Houston, what criteria were used in the evaluation. He smiled and suggested I try the quiche caviar.

I must acknowledge that the "top 100" are an impressive array of dedicated professionals. But there are over 170,000 active lawyers in California. I want the 169,900 or so lawyers out there to know there is nothing wrong with being in the top 200 or 500 or 10,000. Being a member of the State Bar makes you tops. And do not be resentful if you are not in the colorful supplement to the Los Angeles Times that features the greatest, most phenomenal, spectacular, successful, awesome, stupendous lawyers in all creation, lawyers who bring in verdicts of billions of dollars to vast numbers of satisfied clients. Know that by virtue of your profession you are in a noble calling, bringing aid and guidance to people in need.

I suppose, however, it is natural for some lawyers who do not make the top 100 to feel slighted, particularly those who in one year are included, but in the next year are not. I know what it feels like. It happened to me. One year I was included in the 100 top judges, but the next year I was not. I inquired, how could this happen? I was told it was an erratum.

Lawyers and Judges in Harmony

I will admit it. Some of my best friends are doctors. On occasion we argue about our respective professions. We get into these silly comparisons about who works harder and who contributes more to society's well-being. And when we get into discussions about California's MICRA legislation, misnamed the Medical Injury Compensation Reform Act, I sometimes feel like ripping a stethoscope from around someone's neck and putting it to an unintended use. The doctor says, "It keeps medical costs down by limiting unwarranted damages in malpractice suits." I argue that for over three decades it has frozen non-economic damages to a mere $250,000, despite a precipitous rise in the consumer price index. I posit that this cap on damages means the greater the doctor's negligence, the less damages he or his insurance carrier pays.

And then the conversation may degenerate into something about doctors bringing life into the world, and lawyers seeking either the imposition of the death penalty (bad thing) or defending murderers (also a bad thing). I had such a discussion with a doctor a while ago. The "bringing life into the world" topic took a turn into a discussion of childbirth. My doctor "friend" told me that women deserve recognition as true heroines for bearing the burden and pain of childbirth. Who’s going to argue with that? But when she implied that males were wimps, I pointed out that male sea horses carry the eggs of the young and give birth to them. Can you believe that she considered that undeniable fact “the most ridiculous rebuttal” she had ever heard?

And then she made an accusation, which was in fact a disguised inquiry. "I bet this winds up in your column." You would think I had nothing more important to write about. And then she criticized my column for starting out in one place and ending up in an entirely unexpected place. Can you believe it?

But it doesn’t bother me. We judges are used to criticism. Law professors and so-called legal observers relentlessly search for so-called “flaws” in the reasoning of our carefully wrought decisions. And higher courts, well, I guess they are entitled to their opinions. But splashes of disapproval evaporate like morning dew as the sun rises. We don’t take it personally… well, not that personally.

My dissatisfied doctor was too close to her profession to see that MICRA was in need of revision. Her attack on my column reflected a narrow worldview. She yearned for topics that in her limited experience were related. She obviously lacked the insight to see connections that were beyond her ken. What I am saying here is that not everybody “gets it.” If some ignoramus doesn’t… -oh, never mind. Strike the preceding sentence and disregard it in your deliberations about this column. I simply think we should expand our perceptions of the world and periodically question our values. When we challenge the established norm, or even what is politically correct, we may discover something new, the unexpected.

I suppose too many people are locked in their cozy little boxes of the familiar and the conventional. The composer Igor Stravinsky accurately described the phenomena when it comes to modern music. He said that when people remark that they know what they like, they really mean they like what they know. When I related this relevant comment to my doctor friend, she bragged about the doctors symphony. What is there to brag about? The Los Angeles Doctors Symphony admits in its website that its players are not all doctors. Some are veterinarians, and many have never even seen a doctor. Christian Scientists are welcome. How can you call that a doctors symphony?

Speaking of music, that brings me to lawyers. I will make the connection in due course. But, first, I want the record to reflect that I truly like and admire lawyers, judges, and doctors, even if now and then they criticize my column or my opinions. I explained to my doctor friend that lawyers are often castigated when they should be praised. Take for example the Watergate break-in that brought about the resignation of President Richard Nixon. People remarked that many lawyers were involved in the Watergate incident and its cover-up. Yes, but lawyers brought the wrongdoers to justice.

I have heard business people complain that lawyers are obstructionists who lack the creativity to see the beauty of a business deal they work out. “We set up this perfect series of transactions only to have them screwed up by the lawyers.” These blockheads fail to realize that the lawyer’s suggested revisions brought the transaction into compliance with the law and, it is hoped, will avert lawsuits.

Lawyers are creative and resourceful. Their talents extend beyond the law. I am impressed that a proctologist may play the bassoon in the doctors symphony, but I am in awe when Administrative Law Judge Stuart Waxman plays tympani drums in the Los Angeles Lawyers Philharmonic. And in this lawyers symphony all his fellow musicians are connected to the legal profession. Judges Mary Thornton House and Helen Bendix are in the viola section. Retired Judge Aviva Bobb plays in the first violin section. Many of the lawyers and judges in the orchestra received their musical training at such institutions as Julliard, the New England Conservatory of Music, and the Thornton School of Music at the University of Southern California.

It is hard to believe this outstanding legal-musical aggregation of some 75 musicians did not exist until just a few years ago. Please note the connection to Stravinsky and music mentioned a few paragraphs ago. The orchestra owes its existence to its dynamic conductor, Gary Greene also an attorney.

Gary's uncle, renowned Dr. Ernst Katz, had formed the famed Junior Philharmonic a long, long time ago. How long? The year of my birth let's leave it at that. Gary, who was the concert master for the Junior Philharmonic, became its conductor when his uncle died in 2009. Taking over the revered Junior Philharmonic and practicing law afforded Gary a huge block of time, at least five or six seconds, to form the Los Angeles Lawyers Philharmonic. Apparently, Gary does not sleep.

An ad he placed in the paper in 2009, "Musicians Wanted," produced requests for auditions, many of which took place in his law office. When Gary's secretary stuck her head in the waiting room and said, "Mr. Greene will see you now," a probate lawyer, encircled by a tuba, put down his Daily Journal and went in for his audition.

In a mere two and a half years, the Los Angeles Lawyers Philharmonic has given over 24 concerts in such prestigious venues as Disney Hall, the Dorothy Chandler Pavilion, and the Greystone Mansion. Their recent performance at Disney Hall of the IV Presto movement of Beethoven's "Ninth," with the debut of the 100 voice choir, Legal Voices, won a unanimous verdict of praise from the audience, which included opposing counsel in a sold out performance. It is reported that immediately after the concert, 281 cases settled in the foyer.

The orchestra's executive director is Gary's daughter, Debra, a radio news reporter, who has won two Edward R. Murrow awards and the Mark Twain award from the Associated Press. She, who is also a talented violinist in the Junior Philharmonic, manages all aspects of the Lawyers Philharmonic, including publicity, and produces its many concerts. I don't think she sleeps either. Yet, she and Gary are always wide-awake. Mmmm. Could be something in their DNA.

Gary has more verve, more power than any other musical director anywhere. He stands on a podium looking down at lawyers and judges and tells them when they are out of tune, and orders them to pick up the tempo, or to play softer, or not to play at all. Pardon the injudicious comment, but I like our lawyers symphony better than the doctors symphony. Nevertheless, some of my best friends are doctors. Well, at least this column has ended where it began.

Monday, August 01, 2011

Time On My Hands

Judging and much of practicing law involve forays into the past. Of course we do this in the present, and hope that our efforts lead to a predictive glimpse into the future. A typical case, no matter what its complexity, involves a reach into, a recollection of, the past. In simple terms, someone or some entity did or did not do something that caused some type of injury to someone else. In the present we look to the law to help us decide whether redress is possible. We also factor in costs and evaluate the likelihood of success. Is the pursuit worth the effort? And, if it is, will we gain a worthwhile benefit in the future? And this calls into question whether our remembrance of the past is accurate (take note Mr. Proust). How much of the past do we imagine or assume?
Notice all the questions in the preceding paragraph? Notice the preceding sentence is a question? All these questions highlight that our perceptions about time are inexact. And now for yet another question. Sorry. Where does this lead? You expect an answer to all these questions? How should I know? I am used to asking questions. And how would a lawyer typically answer these questions? Gosh darn, another question. But you know the answer to that question. You ask a lawyer, "What about this or that?" And what is the exordium to the answer you receive? Pardon a detour for another question. What does exordium mean? I will rephrase the question. What are the customary words the lawyer uses to preface her answer? "Well, it all depends, Your Honor…."
I may not know where it leads, but I can tell you what it reflects about the law. Uncertainty pervades the profession. We take educated guesses about what the law allows or disallows, and we try to write opinions that elucidate the law as it applies in certain situations. In some cases we get close to certainty, but absolute certainty is an illusion.
We know this in our everyday lives. We may yearn for certainty, but intuitively we know that time makes certainty certainly uncertain. The intersection of the past, present and future is the insuperable roadblock to reaching unconditional confidence into what the future holds. This is tough on columnists, particularly this columnist. I am writing this column now, but my "now" is not your now. My "now" is now in the past for you. And now, while I am writing this column, your "now" is in the future for me. I have no idea whether you will even be reading this column, in which case, I am like a tree falling in the deserted forest.
This philosophic inquiry into time undermines the myth of the omniscient writer. Let me explain. In my last column, I spoke of the superb Los Angeles Lawyers Philharmonic under the direction of its talented conductor Gary Greene. I also shamelessly mentioned that I would be performing in a concert with the orchestra at Disney Hall on Saturday, July 30th. For me now, writing this column, the concert has not yet happened. But for you, it has. I have no idea what the reviews are, but you do. As you read these words, I could be on the stage, the one leaving town, not the one at Disney Hall.
Another example of how a present action that is good for some becomes a past action in the future that can have unforeseen consequences. Many years ago, I authored an opinion, First Central Coast Bank v. Cuesta Tit. Guarantee Co. (1983) 143 Cal.App.3d 12. A creditor bank tried to garnish funds in an escrow due its judgment debtor, a real estate broker. On the date of the levy, not all the funds had been deposited into escrow. Because the funds due the broker were contingent on additional funds being deposited into escrow, the broker had, at best, a contingent right to collect his fees through escrow. Therefore, on the date of the levy, there were no funds to attach.
How did I know that twenty years later, when my wife and brother-in-law tried to attach funds owed them from a real estate broker judgment debtor, the Cuesta case would prevent them from collecting fees in an escrow due the judgment debtor? In plain speak, you never know when the past will rear up and bite you… somewhere.
That actions we take in the present are influenced by past experiences, and reflect our individual expectations for the future, are nothing to fret about. We cannot predict everything about the future, but we we can make good and valid predictions that generally bear out our expectations. Often we have had to sift through numerous facts and, after due refection, have been struck with an insight that justifies a decision that mostly meets our future expectations.
A few days ago Governor Brown nominated Goodwin Liu for the California Supreme Court. I am as close to certainty as possible in predicting that Liu will be one of the great justices to sit on our high court. The Governor considered numerous worthy candidates for this position, and no doubt he weighed the merits of worthy sitting judges as opposed to those from practice or academia. But whatever the pros or cons of those competing views, when someone of such stunning brilliance and accomplishment emerges, you know the present decision will have good future consequences.
Can we predict how Liu will rule on every decision? Of course not. No one, not even Liu, possesses such certainty. But we can be relatively certain his decisions will be made within the framework of his judicial role, and he will be interacting with and considering the views of his distinguished colleagues. And we can be certain that he will reflect on the cases before him and make informed decisions that reflect clear and reasoned analysis.

On Another Note

Damn! I miss my First Amendment rights. If a corporation, which, at best, is a fictional person for limited purposes, has First Amendment rights, then why not me? I am a real person… most of the time. In voicing this concern, I speak for judges throughout the country who must glue their lips together, while politicians, pundits, radio talk-show hosts, columnists, law professors, lawyers, and Joe, whether he be a plumber, carpenter, taxidermist, or neurosurgeon, rant about everything, including judicial decisions.

And why is freedom of expression so abridged for the judiciary? Because a plethora of rules, regulations, and canons of ethics prohibit judges from engaging in any activity outside of the courtroom that could remotely reflect on their objectivity. The mere possibility that a judge's fairness could be compromised inhibits him from responding to scurrilous editorials or publicly expressing themselves on controversial topics. It takes its toll. The seemingly calm impassivity revealed on a judge's face can be the cover for seething rage within.

The "appearance of impropriety" imposes the principle of judicial restraint on all judges. Well, not exactly all judges. U.S. Supreme Court justices appear to do and say whatever they damn please. The rules do not apply to them, and there is no indication the highest court in the land intends to impose rules on itself.

A recent article in The New York Times by Jeff Shesol questioned whether Supreme Court justices should express their “personal” opinions in public. Like most appellate court judges, they forcefully express their "opinions" in their opinions, and some have no compunction about scoring their colleagues with whom they disagree. Is their “objectivity” compromised when they speak in general terms about the law and the Constitution in public forums? Of course not. Eschewing subtlety and tact, Justice Antonin Scalia makes clear his views on or off the bench. It is easy to imagine the content of the constitutional tutorial he delivered to the Tea Party caucus.

That Justice Clarence Thomas has attended gatherings hosted by the ultraconservative Koch brothers, or that Justices Ruth Bader Ginsburg and Stephen G. Breyer have attended "liberal" policy forums is no big deal and no surprise. The justices are going to rule the way they do whether or not they speak at or attend a meeting sponsored by an organization with a specific policy agenda. The problem with such participation, however, is that the public's respect for the judiciary, if there is any, erodes when the justice rules on issues dear to the organization involved. Justice Thomas' opinions often reflect conservative views, but one would hope, if not expect, Justice Thomas to recuse himself from a case in which a Koch brothers' organization was a party. Right?

I suppose that because judges do wield such power, they possess a certain mystique that engenders interest in what they do and say off the bench. Their speeches and articles may give some insight into how they may rule, but merely reading their past decisions is often the most reliable predictor. And, believe me, the mystique thing is a phantom. To one another, judges do not have mystique.

Getting back to Justice Thomas again, mystique is not a term he would use to describe his job. In an article about him in the Los Angeles Times last week, he had this to say about his job: “There’s no money in it. No privacy. No big houses… from an ego standpoint, it does nothing for me." Thomas acknowledges it is an honor to be on the high court, but he says, "I wouldn't say I like it." What he likes is to drive a motor home.

Mystique or not, I would like to exercise my First Amendment rights with the scope and freedom enjoyed by U.S. Supreme Court justices. True, for 22 years, I have expressed my views on a number of controversial issues in this column. But this endeavor is fraught with peril. A persistent nagging question dogs every word I write: Will this be the word, the sentence, the paragraph, the entire column that muzzles me… and the dog? If this should happen, I may have no choice but to fall back on a profession I had rejected long ago.

Let me explain. When I was a kid I thought of becoming a jazz pianist. What militated against that choice then and what concerns me now are: I can’t stand cigarette smoke, heavy drinking, late hours, and people talking while I'm playing this quite apart from whether or not I am worth listening to. And there's no money in it. I have played gigs where the musicians were so underpaid, they had to share a rolled cigarette at the break.

So instead I went into a related field, judging. As Justice Thomas pointed out, the money in judging isn't all that good either. But there are other things in common between judging and playing jazz… lots of improvising. The Court of Appeal is much like a jazz trio. Three people collaborate to produce a final product, an opinion, or a piece. The difference is that on occasion a dissent turns the trio into a duo. That seldom happens in a jazz combo. You can just imagine what occurs if the sax player takes off in another key, or the drummer plays in a different tempo than the others. That could be the creation of chaos or, perhaps, something avant-garde. In either case, the audience may walk out. But such an incident would rarely engender a fist fight among the musicians.

So in this respect jazz musicians and judges are dissimilar. As an example, I offer the Wisconsin Supreme Court. It has been reported that one justice was so exasperated by the views of another justice that he grabbed her around the neck. I am sure their politics had nothing to do with it. Therefore, I need not tell you that the alleged choker must have had a flash-back to his days as the Republican leader of the State Assembly.

I have no plans to leave the court soon, despite my having spent half my life in this profession. But I will be performing briefly in my other profession with the L.A. Lawyers Philharmonic at Disney Hall on Saturday, July 30. Joining me will be lawyer-musicians Greg Victoroff on drums, Bob Hirschman on bass, and Joe DiGiulio on alto sax, and a surprise singer named Barbara. My colleague and friend, Justice Steven Perren, will be singing selections from "Porgy and Bess."

Now enter stage center, the First Amendment. I would like to tell you more about the concert, but the canons of ethics prohibit me from using the "prestige of my office" to endorse this wonderful orchestra or its brilliant conductor and founder, Gary S. Greene, Esq.

In the event you attend the concert, do not tell me or Justice Perren about it. We would have to recuse ourselves from any case you would have in our court and, in all probability could never, ever have anything to do with you again.

And I almost forgot. There is the other rule that judges must never do anything that would hold the judiciary in disrepute. What a quandary. This rule applies with full force during my solo. And one last thing if Justice Thomas and the Koch brothers attend, don't tell me about it.

Thursday, June 09, 2011

Democratic Address

Who are we? Are we our titles? Not if your name is Dr. Jekyll. Some of the time he's Hyde, the persona hidden under the doctor's respectable patina.

Titles impress some people and turn others off. Often it is better to avoid your professional epithet when not engaged in your profession, unless you're trying to book a good table at Spago's. Of course judges never do that, so I wouldn't know if it works. Titles are passé. No matter what appellation precedes our name, we are usually on a first name basis with people in most circumstances. However unequal we may be to one another in certain respects, we spread the illusion of equality in the way we address one another.

In the gym locker room, guys of all ages and backgrounds often address one another as "Dude," or with a misspelled canine moniker. "Hey, Dude, can you move your gym bag out of the way of my locker?" "No problem, Dawg." Civility and equality cohere in the locker room.

I am in favor of this informality. Picture me in the waiting room of my doctor's office. The 20-year-old receptionist who surfs in the ocean and on the web calls out for all to hear, "Arthur, the doctor is ready to see you about your prostatic hyperplasia." No one in the waiting room will pay attention, but imagine the looks I would get if she calls out, "Presiding Justice Gilbert… etc."

The informal address is now de rigueur in the most exclusive restaurants. A young man will approach your table with a greeting, "Hi, I'm Nick and I will be your server." "Waiter" is an English colonial anachronism, no longer acceptable. Implicit in the greeting is, "I may serve you, but I don't wait on you." Nick will be our server. How true. There isn't even bread on the table yet. But after we place our order, will he then serve us? Not necessarily. He may serve us by taking our order, but someone else may in fact serve it. To get in the spirit, I may respond, "Hi, Nick, I am Arthur and this is Barbara, Marc and Stephanie." Sometimes I ask a question, "Are you an actor, Nick?" "No," responds Nick, "I'm going for my Ph.D. in medieval German literature."

Some servers in one restaurant are more formal and eschew the first name. At the famous Lawry's Restaurant on La Cienega, a neatly dressed woman approached our table and introduced herself. "Hello, I am Mrs. Green, and I will be happy to assist you in making your selection." Mrs. Green and all her co-workers were dignified, yet friendly, and they could empty a bottle of Lawry's salad dressing from a bottle held high above their heads while the salad turns in a revolving wooden bowl on the table below, a feat I could not accomplish if certain death were the penalty for failure. So she deserves to be called Mrs. Green. But this is the exception.

There is such a bias against using titles that even when its use is appropriate, people often get it wrong. I performed a wedding for two actors. At the conclusion of the ceremony, I pronounced the couple husband and wife, "by the authority vested in me as a Justice on the California Court of Appeal." Some of the guests offered congratulatory words at the end of my ceremony. The famous actor John Carradine rose from his seat and, in stentorian tones befitting a Shakespearean sonnet, spoke of love, commitment and acting. He then quoted a few words I had said in the ceremony with this opening, "As the Justice of the Peace said …."

But sometimes it might be a good idea to use your title when it is necessary to distinguish you from another person with the same name. Some time ago I made a reservation for lunch at The Bistro Garden in Beverly Hills. I made the reservation over the phone, for two, under my name, Arthur Gilbert. I arrived a few minutes early. The maitre-d' was away from his "lectern" for a moment, and the head waiter, I mean server, seated me at a perfect table on a slightly raised level in the outside garden section of the restaurant. It looked out over the other tables on the flagstone patio where I had an unobstructed view of the stunning patrons spending a fortune for lunch.

While I was waiting for my friend to arrive, I ordered an iced tea. Shortly after the server came with my tea, the maitre-d' approached the table.

"I'm sorry, sir, but I am afraid you will have to move. This table is reserved for Arthur Gilbert."
"Yes, I know," I replied.
"I am sure I can find you another table," he said with a smile.
"Why would you do that?" I asked.
He looked at me quizzically. "Because, as I already said, this table is reserved for Arthur Gilbert."
"Yes, I know," I said.
"So, would you please move?"
"Why would I do that?" I asked. I allowed for a series of dramatic pauses, "when I… am… (increasing volume)… Arthur Gilbert!"
He replied, "Oh no, you are not."
Taking advantage of one of the few times in my life I was absolutely sure of the accuracy of my assertion, I answered smugly, "Oh yes, I am."
"Oh no, you are not."

The swiftness of his response and the certainty of his tone caused me to doubt whether the Cartesian axiom, "I think therefore I am," applied to me. Could I be and not be me? And that led me to question the thinking part. To prove to the maitre-d' and to me that I was me, I whipped out my card. It has my name on it. I handed it to the maitre-d'.

He glanced at it and smiled. "Come," he said with warmth and good cheer. "I have a wonderful table for you." I followed him to another table, good, but not quite as good as the one I was sitting at a few seconds before. My card proved nothing. It was so obvious. I was not Arthur Gilbert. The maitre-d' knew it and so did I. I did not have the priceless silver collection that had been housed at the Los Angeles County Museum of Art and then moved by Arthur Gilbert to the Tate Gallery in London, where Arthur Gilbert later was knighted Sir Arthur Gilbert in his native England.

I was not and never will be the extremely wealthy Arthur Gilbert, now deceased. Note-the preceding sentence is correct. It is certain I will be deceased, but right now I am not. Of course, I do not know when you will be reading this column. I will go out on a limb and assume I am not now deceased. I do not have vast holdings in large buildings and an impressive art collection. I have no foundation bearing my name that supported cultural television programs on PBS. I won't go into the mix-ups we have had in the mail.

The point is there is a time and place for titles. When in court it is advisable to refer to the judge as "judge" or, better yet, "Your Honor." This upholds tradition and avoids contempt. There is no need to be so formal out of court, as is the case with a neighbor of mine, who, when walking her dog early in the morning as I jog by, yells, "Good morning, Your Honor."

But here's a practice pointer for lawyers. Do not do what an opposing attorney did with me when I was in practice and we were in chambers trying to settle a case. He kept referring to the judge as "Dick." When I became a judge, a lawyer referred to me by my first name during a settlement conference in chambers. I responded by referring to him by his last name, Mr. Skimpole. I think he got the message.

It comes down to this. It is the quality of the work we do that matters, not our titles. There is a time and place for formal address and informal address.

I have been thinking about writing a novel along the lines of Moby Dick. Like Captain Ahab, the pivotal character in Herman Melville's epic, my central character also will be in quest of a creature of gargantuan proportions. Just as the whale may be a symbol for fate, or the incomprehensible nature of existence, so too the grand creature in my novel will be a symbol of the illusive ideal of justice. The novel will be told from my perspective, but I am not sure how to begin. What do you think works best, "Call me Arthur," or "Call me Presiding Justice Arthur Gilbert"?

Monday, March 07, 2011

The Play's The Thing

Over the past two decades, I have written around 200 columns. You think it’s easy knocking out a column every month? (A knockout of a column is a different story.) Take it from me, getting in the ring with words is not for scaredy cats. It is frightful and wearing to throw wild punches at frenzied words dancing and feinting with bewildering moves that throw me off balance. I 'm often ready to throw in the towel, but at the last minute I get my bearings with an idea that I personalize as my trainer. I get in the ring and go the distance, usually to a draw.

The idea for a previous column (Jan. 10, 2011, Profiles in Courage-the Sequel) came to me at the opera, Rigoletto. (The opera serves as a welcome exit from the boxing metaphors.) I wrote about a plucky woman I met in the men’s room of the Music Center. Incidentally, after the column was published, I learned from a superior court judge that the courageous woman was his wife. Just a week ago, my wife and I and dear friends were at the opera again for a Sunday matinee performance of Rossini’s Il Turco in Italia (The Turk in Italy). Keeping in mind Thomas Wolfe’s novel You Can’t Go Home Again, I did not expect anything as dramatic to happen again. It didn’t. On this Sunday, the men’s room was boring, and it is not a good place to tarry. Neither is lurking near the women’s room to see if some man would sneak in. Not a possibility. DMV lines move swiftly in comparison.

During the intermission I heard people complaining that the opera lasted 3 hours and 15 minutes. That meant they and we would not be home in time to view the beginning of the Academy Awards show. Oh dear! And then an idea hit me. Should there not be an awards ceremony each year to honor the best performances and decisions that come out of our legal system? But giving out “Oscars” would be so … so derivative. Instead, the winners would receive an “Oliver.”

I devised a list of categories eligible for awards: a dramatic role for trial lawyers (I rejected creating an award for best comedy judge and lawyer for obvious reasons, though I had some candidates in mind); supporting roles for law firm associates and judicial research attorneys; behind-the-scene roles for secretaries, assistants and paralegals; writing awards for briefs (comparable to original screenplays) and judicial opinions (comparable to screenplays adopted from another source).

And then I became stymied for the award that would parallel "Best Picture." Pardon my bias, but I wanted this award to reflect some great spectacle in the judiciary. I needed something that contained drama, conflict and tension something like The Social Network. I was at a loss. The Fighter had no appropriate counterpart in the court system, and I was ready to throw in the towel. (Sorry.) And then I found a way to solve my dilemma. It was in the very opera I was attending, Il Turco in Italia.

The opera involves a playwright who is looking for ideas for his next comedy. Only he cannot come up with something that is original or novel. He visits a gypsy camp where he hopes to find material and inspiration. He watches a drama unfold, which becomes his play, much like my writing about the lady in the men’s room. We need not repeat here the events in the opera because they involve multiple love affairs, a Turkish prince, his slave paramour, an unfaithful wife and mistaken identities. I cannot speak for the legal profession, but the plot of the opera bears no resemblance to the California judiciary … as far as I can determine.

I decided to use the device of the playwright in the opera to find material for my column. I would simply write about dramatic events unfolding in the judiciary. From this I might get a handle on what would qualify for the counterpart of "Best Picture" in the Academy Awards. The King's Speech was a wonderful movie, certainly deserving an Oscar, but my choice was The Social Network. But what in the judiciary could be comparable to the tension, the animosity, recriminations and rancor involving a billion dollar company?

I was ready to exit center stage (better than a boxing metaphor here) when it hit me like a perfect high C. It was right in front of my face the drama involving the Court Case Management System (CCMS) alleged to cost $2 billion or more. The state auditor had sharply criticized the management of the project and the oversight of its costs. Some legislators and judges were appalled by the way the project was handled, and a number of judges called for abolishment of the entire project. Even Justice Bruiniers, Chair of the Judicial Council's CCMS Executive Committee, appeared to agree with most of the auditor's critiques. But he and others have taken strong positions against abandoning the project.

Shortly after the auditor's scathing report, the Judicial Council received a cost benefit analysis from a prestigious audit tax firm that concluded the "statewide case management system … has an essential role in the operation of our state justice system" and, when in operation, will save the state $300 million a year.

A recent epistolary exchange between Justice Bruiniers and Los Angeles Superior Court Judge J. Stephen Czuleger highlighted great differences in perception about the manner in which the project was presented to judges statewide and to the Legislature. Some judges in those courts where a version of CCMS (V-3 the civil module) was implemented think it is wonderful. Others tell me it is a failure.

The playwright in Il Turco in Italia finds a happy ending to his play. The wayward wife decides it is more prudent to be more conservative and stay home with her husband and gives up her two lovers, one of whom is the Turk. The Turk settles down with the woman he truly loves, a slave from his harem, and the wife's other lover repents and gains forgiveness from her husband.

But I am facing an obstacle. There is not as yet an ending to the CCMS drama, let alone a happy one. Is there a way to bring this drama to a happy ending? Perhaps we all can agree that a statewide case management system that works will be beneficial and efficiently improve the administration of justice. But a good ending for this drama lies in the answers to some questions. Is CCMS worth the cost? If so, how do we pay for it when the judiciary's budget may be cut by $200 million? If we halt the project now, will we lose the investment we have made to date if we resume the project in the future? The Administrative Office of the Courts,(AOC,)just answered this question in the minutes of its last meeting. Cancelling the program will result in an unrecoverable loss of $270.5 million already spent on the development of CCMS-V4. With that good news in mind, how does the judiciary decide its spending priorities with a drastically reduced budget?

The playwright in Il Turco in Italia intervened on occasion to prod the characters in certain directions to achieve a good ending. I too wish to nudge us in a direction toward a satisfactory ending for our drama. I suggest an approach that reflects a paramount value: all players in our drama, the judges, lawyers, and administrators throughout the state, whatever their opinions about CCMS, unite in support of our highest priority Keep the Courts Open.

To close the courtroom in the middle of a trial and tell litigants they must go home and come back in two days because we have other things to pay for is not a good ending to our drama. It is disheartening to the judges and court staff who have devoted themselves to the cause of justice. And it is most unfair to the public who trusts us and depends on us to resolve their disputes.

Keeping our values straight will provide a good ending to our drama. And the award, the coveted Oliver, will go to those who sacrifice to make this ending possible.

Wednesday, March 02, 2011

The Unintended Consequences of Impatience

Patience, one of the most important traits a judge must possess. The JNE (Judicial Nominees Evaluation) Commission questionnaire asks those charged with evaluating candidates for judicial office about temperament. Under that general rubric are the specific qualities of courtesy and patience.

Take this scenario. After listening to an attorney drone on with repetitive, irrelevant, mind-numbing questions in a monotone, the impatient trial judge will interrupt with a hint, "Is that all counsel?" Is it not possible that the cowed attorney, who takes the hint and sits down, will have missed the opportunity to ask that all important question, the answer to which will provide the resolution of the case? That can be the unintended consequence of a judge's impatient remark.

The discerning reader might detect a faint tone of sarcasm in the previous paragraph. I will come clean. President Jimmy Carter admitted to lusting in his heart for women. I admit to succumbing to impatience, not just in my heart, but in practice, on and off the bench.

I recall once, or twice, maybe more, at oral argument at the Court of Appeal, when I subtly may have displayed impatience. I called a case, and the lawyer, who had hired a Bekins moving van to deliver to the court his files, walked down the aisle to the podium, dragging behind him a dolly piled high with files and Samsonite carrying cases, followed by an associate, driving a forklift piled high with much of the same.

The lawyer asked for a minute as he unstrapped the files, pulled numerous folders from briefcases, and placed them on the counsel table. It was more than a minute. Finally he approached the podium and opened a file, and then said something like, "Whoops, just another second, Your Honor." It wasn't. What did I say in response? "Why not take all morning with your infuriating delays and waste the precious time of the lawyers waiting to argue their cases? You think that bringing volumes of transcripts from the trial you deserved to lose will enhance your chances on appeal? Get real."

That is not what I said. That is what I thought. The lawyer grabbed another file and once again approached the podium. As he cleared his throat to begin his argument, and was about to utter his first word, I said, "Your time is up." Many in the courtroom laughed and applauded. But I don't do that anymore. It might be interpreted as a sign of impatience. Now don't get me wrong. Sometimes impatience is warranted. A judge should not lose control of the courtroom for fear he or she might be labeled "impatient." I have learned to control my proclivity for impatience, even when it is warranted, because of my greater concern about unintended consequences.

Let me illustrate with a hypothetical. Sooner or later, we Americans once again will display our irritation with the French, even though the previous week we loved them. Some snooty French cook will claim to have invented "French fries," and we will protest. Movements to ban French toast and outlaw "French kissing" will gain momentum.

As the protest grows, a small municipality in the Midwest enacts an ordinance requiring that all French Poodles be neutered. The five people who own French Poodles hire the ACLU to challenge the ordinance in court. The town's city attorney thinks the ordinance is silly, and hints he will not enforce it. Owners of German Shepherds, Russian Greyhounds, Mexican Hairlesses, Japanese Akitas, and English Setters throughout the country urge the French Poodle owners to drop their suit. They caution, better to play dead for the moment. But no, the suit is filed and makes its way to the Supreme Court. In a unanimous decision, the court holds the ordinance is unconstitutional and chides the city council for enacting an idiotic law. The Supreme Court's harsh language reflects “impatience,” and offends the populous of the state in which the municipality is located. The people enact a constitutional amendment that prohibits ownership of not just French Poodles, but all dogs of foreign countries. Moral of the story: Let sleeping dogs lie.

Speaking of dogs, a personal experience brought home to me the relationship between impatience and unintended consequences and taught me a lesson. A friend of mine died. His elderly mother, Francine, lived alone in a condominium in the San Fernando Valley. I dropped in on occasion to see how she was doing and to take her out to dinner. She had an elderly Schnauzer, Regina, for whom I had an overwhelming aversion. I love animals, but detest dogs with human names. Regina walked stiffed legged, like a wind-up toy. Frequently, and for no apparent reason, she emitted a sound, which I charitably call a bark. Regina’s “bark” sounded more like a muffled uh-oo-gha horn. Ring Francine’s doorbell and you might hear a faint “uh-oo-gha, uh-oo-gha.” Sit at her kitchen table drinking a cup of coffee, and you might hear at your feet, “uh-oo-gha, uh-oo-gha.” As you shall learn shortly, this unpleasant description of Regina’s decrepitude is germane to my story.

It was Thanksgiving, and we invited Francine to our house for an early turkey dinner. It was understood that Regina would not be joining us. I drove out to the Valley to pick up Francine around 2 p.m. This was a typical Southern California Thanksgiving Day, 85 degrees. I rang the doorbell and Francine invited me in. It was hard to see inside because the curtains were drawn. I could hear a weak “uh-oo-gha, uh-oo-gha.” As my eyes became accustomed to the dark, I could make out that Francine was wearing a full-length winter coat. I found this curious, not just because of the warm temperature outside, but because the heat in the condominium was turned on high and blasting out of the vents.

I believe this was the point at which I displayed… impatience. Did I take a moment to ask Francine, who I had no reason to believe was senile, for an explanation? No, not impatient Arthur. “This is crazy,” I thundered. “You are wasting energy.” I flung open the curtains causing Regina to blink as sunlight flooded the room. I turned the knob on the heating controls to “off.” “Shall we go?” I said… impatiently without letting Francine get a word in edgewise. To Regina, I said… impatiently, “Go chew on your rancid rubber bone…if you have any teeth left.” It is not easy to admit that I could have been so sarcastic, so… impatient.

Francine and I left and we quickly forgot about my unpleasant outburst. We had a delicious Thanksgiving dinner with family and friends, and Francine had a wonderful time. I drove her home around 9:30 p.m. Unlike the afternoon, the evening in the Valley was particularly cold. Luckily, Francine was wearing her warm winter coat.

We opened the door to the condominium and turned on the light. I sensed something was wrong quite apart from it being freezing inside.
No “uh-oo-gha, uh-oo-gha.” No Regina. I shivered. There in a corner of the room I saw stretched out and unmoving, Regina. She was stiff as a board, and appeared to be critically, seriously and terminally dead. It was obvious rigor mortis had set in. But to be doubly sure, I drew upon the knowledge I had acquired in my high school physiology class. I placed two fingers near Regina’s nostrils. No breath. Conclusion-Regina is dead, a conclusive presumption.

Francine was standing on the other side of the room, shivering in her winter coat. My mind was racing. What am I going to do with a dead Schnauzer on Thanksgiving evening, and what am I going to do with Francine who had just lost her best friend?

I turned on the heat, which once again came blasting out of the vent with a “whoosh.” I embraced Francine and told her how sorry I was that Regina had passed on. Inwardly I cursed the predicament I was in and I cursed myself for being in the predicament. Meanwhile, the room was heating up. I suggested Francine take off her coat. I glanced across the room at Regina’s lifeless body. Wait a second. Did I see a flick of Regina’s ear? Can’t be. Probably wishful thinking. But just to be sure I walked over to Regina. The room was like an oven. Regina twitched. She opened an eye. She stirred. She got up… slowly, but she got up and stayed up. I replaced my earlier conclusive presumption with a new one. Regina is alive - beyond all doubt - at least for now. Oh joy! Francine is ecstatic. Stiff -legged Regina is hobbling about.

From this upsetting experience, I learned a good lesson about the corrosive effect of impatience. Had I asked earlier in the day why the heat was on and the curtains closed, this upsetting chain of events would never have occurred.

And from that day on, I have made every effort to be a patient and courteous person on and off the bench. But on occasion I wonder whether a law outlawing Schnauzers would pass muster.

Tuesday, January 18, 2011

Profiles in Courage- The Sequel

Warning. The concluding paragraphs of this column contain scatological references, which some, if not all, discriminating readers will find offensive. We strongly advise discretion for the sensitive and parental oversight for those of tender age.

Last month my column centered on the ripple effect of judicial decisions. My example was Superior Court Judge Stanley Mosk's 1948 decision in which he held that restrictive covenants were unconstitutional. I expressed my admiration for his reasoning and insight. I did not mention his courage (a trait, incidentally, I believe he possessed in abundance), because judges who lack courage to make well reasoned, yet controversial, decisions when called for should look for other work. Such decision making is implied in the job description.

Yet many judges who stake out new ground with a constitutionally based decision are often labeled "courageous" or "irresponsible," depending upon the reader's evaluation of the decision. Judges know this. Though most welcome praise, when they are faced with disapproval of a controversial decision, they simply may shrug their shoulders, an acknowledgement that criticism goes with the territory.

Chief Justice George's first opinion in the In re Marriage cases held the ban on same-sex marriages violated California's state constitution. Courage aside, three concurring members of the court agreed that George made the right decision. George felt compelled to change course and uphold a ban on same-sex marriage when the voters nullified his first opinion with the passage of Proposition 8, which amended California's state constitution to define marriage as occurring only between a man and a woman. It would be wrongheaded to label George's first opinion heroic, and the second one pusillanimous. He ruled as he thought he must. Although George's first opinion does not have the force of law, and may settle in the dust of obscurity, it will endure as an example of a judge doing his job. Far better than having one's name on a building.

But some decisions are steeped in courage. Los Angeles Superior Court Judge Alfred Gitelson decided the controversial "bussing case." He ruled that the Los Angeles Board of Education, as the school district was then called, must end segregation. Judge Gitelson's election was on the horizon when he made the momentous decision that would have mandated bussing of students in Los Angeles. He could have held the matter under submission (no relation to the title of my column) until after the election, but he filed the judgment a short time before the election.

The timing of that decision reflected his integrity and courage. No doubt Judge Gitelson knew his decision would engender a firestorm of protest, but as far as I can determine, up until that time no superior court judge had been turned out of office because of an unpopular judicial decision. I suspect that if Gitelson knew he would be turned out of office, he still would not have postponed the filing of the judgment.

There are other less dramatic ways in which a judge displays courage. It is not easy to summon the strength to admit a mistake or to face up to an embarrassing situation. A judge who dresses down a lawyer in court for a minor gaffe abuses his authority. But what if the shoe is on the other foot and the judge is the one who does something foolish?

The late Ventura Superior Court Judge Ben Ruffner invariably treated lawyers and litigants with courtesy and respect. No one would want to see him in an embarrassing position. An example of the unfair distribution of reward and punishment we so often experience was illustrated by what happened to him one day during a jury trial over which he was presiding. He leaned back in his large swivel chair while aligning the fingers of each hand so that they touched their counterpart in the opposite hand. His eyes were partially closed, not because he was dozing, but because he was listening intently to the testimony. When the tilt of his chair passed the line of equipoise, he toppled over backwards.

The view from the courtroom facing the bench revealed Judge Ruffner's shoes, the soles of which were pointed at the ceiling, and a bare portion of his legs just above his socks. If Ruffner had treated people poorly, there might have been laugher in the courtroom. That was not the case. The eerie silence in the courtroom must have been what astronauts experience in outer space.

Ruffner freed himself from the overturned chair, smoothed his robe, and turned the chair right side up. He then sat in it, rolled it forward so that his arms rested on the writing portion of the bench, and addressed those in the courtroom, figures in a painting, frozen in place. In slow, measured tones, he said, "I do not do that for just any jury."

Judge Bernie Kamins, retired from the Los Angeles Superior Court, often sits by assignment in various courts throughout the state. He had minor surgery in Los Angeles. His stitches were due to be removed when he was sitting by assignment in Santa Clara. He went into an Urgent Care center across the street from the courthouse to have this simple procedure performed. He did not know that this center was solely for pregnant women. When he affixed his signature to the sign-in sheet and heard titters in the background, he knew something was amiss. The receptionist inquired if he were a seahorse. Instead of scurrying for the exit, he extended good wishes to the pregnant ladies in the waiting room. Kamins was not expecting, but the nurse nevertheless removed his stitches.

I suppose these last two examples are more about grace under pressure than real courage. But my next example is about a person who possesses the grit and courage to which we should all aspire. Through mere chance, I encountered this valiant individual at the Los Angeles Music Center last month during the intermission between the second and third acts of Verdi's Rigoletto.

My wife and I went downstairs to the restrooms. As usual, the line from the vestibule into the women's room snaked in uneven circles. It inched forward imperceptibly. I said, as I have innumerable times in the past, "Doubt you will make it before the end of the intermission." "I will make it," she said with the confidence borne of countless successful missions.

I went to the crowded men's room. But no long lines. I expected that I would soon join other men in the vestibule, waiting impatiently for their wives, lovers, sisters, mothers, partners or friends. We would glance nervously at our watches when the lights flicker, indicating intermission is coming to a close.

But this time, things were different. I entered the gleaming white, rectangular men's room. To my left was the long aisle I had seen so many times before. On either side were two rows of approximately fifteen starkly white, waterless urinals, all of them occupied. At the end of the aisle was a right turn into another long aisle, against the far wall of which were fifteen to twenty toilet stalls.

I quickly walked down the first aisle where I saw the backs of a variety of men's jackets. Just as I approached the corner and made my right turn, a toilet stall opened up. I quickly slipped in as the previous occupant stepped out. He and I, adhering to men's room etiquette, avoided direct eye contact.

I closed the stall door. How should I put this? You can be a president, an astronaut, a Nobel Prize winner, an emperor, a rock star… even a judge… it doesn't matter… you still have to pee. Task completed. I opened the door. And there facing me was … a woman!

Our eyes met for a split second. Then in an instant she was in and I was out of the stall. The door closed. I didn't say anything. No one said anything. I went back along the aisle of shining urinals to a wide square room with sinks. I washed my hands and crowded with others at the technically advanced paper towel dispenser, which, despite our frantic hand waving, refused to dispense. I didn't care. My mind was on the woman in the stall, the Joan of Arc, the Madame Curie, the Florence Nightingale, who had the fortitude to march into the men's room in her time of need.

I thought of her opening the stall and hurrying along the long row of urinals to the exit. Sir Walter Raleigh came to mind. I decided to help. With my wet hands behind my back, I raced back down the aisle to the toilet stall where earlier our eyes met. I stood guard, waiting for her to open the door. She did, and our eyes met again.

"I am here to run interference for you to cover for you. I am here for you," I said.

"Let's go," she said. And out we rushed as seemingly one person, me directly in front of her. Once out in the vestibule, we laughed giddily and I brought her over to meet Barbara, who for the first time was waiting for me. I said, "Barbara, I would like you to meet a person of great courage who I deeply admire." I turned to the woman I had ushered out of the men's room and asked, "By the way, what is your name?" She told us and we all shook hands.

This woman of valor I will probably never see again. She said simply and eloquently, "I really had to go, and so I said to myself, 'What's the big deal?' and I just marched in there." We said goodbye and we made it back to our seats for the last act of Rigoletto, which we all watched in comfort.

I then wondered whether I would have the courage in my time of need to walk into a women's room…. Forget it, not easy to write a column from County Jail.

Wednesday, January 05, 2011

The Ripple Effect

We have all heard of the ripple effect, how even the most insignificant act can have far-reaching consequences. At the risk of sounding self-important, my sneeze last week may have caused an avalanche in Tibet. I hope no one was injured.

Seldom are we aware of the ripple effect resulting from a kind or an insulting word. Judges may make an off-handed remark in court that could have significant consequences for a litigant, a witness, or someone they know.

I recall a case over which I presided some 30 years ago. A young woman was charged with a misdemeanor offense stemming from her failure to protect her three-year-old daughter from her father's abuse. She pled guilty and I told her about her obligation to protect her daughter and to stand up to the father or call the police.

The young woman thanked me for the advice and I ordered her released from custody. We continued her case to the next month for her sentencing hearing. At that hearing I was surprised to see her dressed in jail garb. She was in custody. The Deputy City Attorney moved to dismiss the misdemeanor offense. I felt a sinking feeling in the pit of my stomach. The City Attorney informed me that he was dismissing the case because she was now facing a more serious offense, the murder of her husband. She smiled at me as though she had done a good deed. Maybe I am overstating it, but I felt she was tacitly telling me, "See, I followed your advice." I am still haunted by a vague sense of guilt for my possible complicity.

I recall a complicated case I wrote concerning whether a landlord was required to return a renter's security deposit. The case involved a statute that I said "teeter[ed] on the brink of unintelligibility." There had been much previous litigation concerning this statute. When the lawyer representing the landlord in a previous case inquired of an appellate panel how his client could avoid the harsh effect of the security deposit, one of the justices said from the bench, "Call it rent." Were it not for that off-the-cuff remark, I would not have had to struggle with Granberry v. Islay Investments (1984) 161 Cal.App.3d 382.

A judge's decision in a particular case can, and often does, have far-reaching consequences for many individuals. Going back again more than 30 years ago, I declared the solicitation section of Penal Code section 647(a) an unconstitutional violation of the First Amendment. The Brown Act made sexual acts between consenting adults legal. I reasoned that "if you can do it, you ought to be able to talk about it," and dismissed approximately 40 cases that charged violations of 647a. In a separate but similar case, the California Supreme Court in Pryor v. Municipal Court (1979) 25 Cal.3d 238 ruled as I did. To get an idea of the profound effect these decisions had on millions of people, I recommend you read "The Domino Effect," by Thomas F. Coleman, who, along with Jay Kohorn, argued the case in my court and the Pryor case before the Supreme Court. Their compelling briefs and cogent arguments made my job easy.

Stanley Mosk, one of California's preeminent jurists, wrote opinions that produced ripple effects permeating the state and the nation. Many of his rulings will endure for generations. But one case he decided as a young trial judge also created ripples that significantly affected many lives. Stanley Mosk's son, Court of Appeal Justice Richard Mosk, wrote a touching article in the Daily Journal, October 14, 2010, The Intersection of Two Lives, about some of the people whose lives were changed by this case, decided more than 63 years ago.

The famous United States Supreme Court decision, Shelley v. Kraemer (1948) 334 U.S. 1, holding that racially restrictive covenants in property deeds were unenforceable in courts of law, had not yet been decided. In Mosk's case, a Black family, the Dryes, purchased a house, the deed of which contained a racially restrictive covenant. When some neighborhood residents sought to enforce the Caucasian-only resident requirement, other Black families moved, but not the Dryes. They stayed to fight this injustice. They were represented by Loren Miller, the great civil rights lawyer, who later became a judge, and whose son Loren Miller became a distinguished Superior Court judge and a dear friend and colleague.

Judge Mosk ruled the covenants were an unconstitutional violation of the Fourteenth Amendment and sustained the demurrer without leave to amend. He pointed out how callous it would be to deny Mr. Drye, a decorated war hero who fought in two wars to preserve our country's freedom, the right to live in a house because of his race. The next year the United States Supreme Court decided Shelley v. Kraemer.

The Dryes stayed in the house and raised their son, whom I will never forget, and not because he and I share a first name. I met Arthur Drye on November 5, 2010. That was the day I was privileged to attend the ribbon-cutting ceremony at the new Stanley Mosk Elementary School in the West Valley. All of us in the audience in the school auditorium felt a connection with one another. You could tell, because we were all smiling, a reflection about how good we felt about the ceremony.

One of the speakers was Arthur Drye, a teacher and school administrator. He asked the students to think for a moment about their heroes. He asked them if Superman or Spiderman were heroes. I was relieved to hear the kids roar in unison, "No!" When he asked if their parents and teachers were heroes, they yelled, "Yes!" I thought to myself there is hope for the future. Drye then spoke of his heroes, his father and mother, who had the courage and character to fight for their rights, and his hero, Stanley Mosk, who made it possible for him to live in the neighborhood of his parents' choice. He spoke of the jeers and taunts he suffered in school because of his race. But, like his parents, he refused to be defeated and became a teacher and school administrator. His message: A hero stands up to bullies. We succeed by not encouraging bullies. Bullies only win if we let them.

It was an extraordinary experience to hear Arthur Drye, standing on the auditorium stage of the Stanley Mosk Elementary School, inspiring and encouraging the students, 63 years after Judge Mosk's decision. It is fitting that the downtown court civil courthouse in Los Angeles be named the Stanley Mosk Courthouse. It is an acknowledgement of his invaluable contribution to California. No doubt Stanley Mosk would be pleased with this recognition. But the grammar school that bears his name, stemming from a demurrer sustained without leave to amend over six decades ago, I suspect, would be an immense satisfaction to him and would hold a special place in his heart.

Stanley Mosk swore me in as a Municipal Court judge on Labor Day, 1975. Through his example and my association with him, he has been my mentor. Arthur Drye and I have something in common beyond our same first names. For us, Stanley Mosk is a hero.

Under the Influence-Intoxication Is Toxic

Last month, Los Angeles Times columnist Steve Lopez wrote about his recent encounter with zip, schnitzel, prune, dooby, chillums, funk, spliff, boo, snop, cheo, ganja, gunja, gunney gange, gash, gasper, griff. As long as we are on the G's, he wrote that the experience made him giggle. You are with me on this, right? He was like blowing a stick, going loco, with a goof butt, hitting the hay, howling with hooch, sparking it up, getting on with gunga. Oh dear, here we are, back on the G's. Gracious. In case I wasn't clear, Lopez was smoking reefers, weed you know, marijuana cigarettes.

And guess what? Lopez got to do it with law enforcement officers present, including the Los Angeles City Attorney. It was all part of an experiment to determine how the presence of marijuana in one's body affects driving ability. This information is particularly relevant should proposition 19, which would legalize marijuana, pass. Suffice it to say that after several 'hits," Lopez's driving skills were impaired. He also was "laughing like a hyena." When an officer asked him if he was having fun, he replied, "What, is that a crime, officer?" That reminds me of Max Beerbohm's line, "Nobody ever died of laughter." But one could die when crossing the street in front of a driver under the influence of cannabis. Marijuana can you think of any other word that has so many synonyms… other than sex?

Some law breakers get a thrill committing an illegal act. But committing a crime with impunity, with the approval of the police, is like riding your bike on the wrong side of the street when it is closed to traffic, confessing one's sins in the confession booth without a priest, being contemptuous in court before the judge takes the bench.

At one time, possession of marijuana was perceived in some quarters as a serious offense. I recall years ago, when my date and I dropped into a party shortly after I had been appointed to the Los Angeles Municipal Court, I wasn’t sure, but there seemed to be a pungent odor in the room. I received congratulations and a few high fives, but there was an obvious tension in the air. I got the feeling they couldn’t wait until we left. My date cautioned me not to breathe too deeply. She feared I might be arrested for driving under the influence. Later, an unidentified source informed me that the party “took off’ when we left. That experience taught me to be vigilant about where I went and the company I kept. Because I occasionally played the piano at jazz gigs, I made it a practice to search all the musicians’ pockets before the gig. If more than one player took a drag on a cigarette at the break, I assumed it was not because they were out of cigarette money. I was out of there. They were left to finish the set as a facsimile of the Gerry Mulligan “pianoless” quartet.

Judges are paranoid about being on the wrong side of the law. It can happen inadvertently. When judges commit an offense, even a minor one, like jaywalking, people take notice. Even among my unconventional, anti-authority friends, there is a look of disapproval when on occasion I have jaywalked. I am supposed to set an example. My columns about my notorious speeding tickets on Pacific Coast Highway have drawn considerable attention. Readers seem amused and satisfied to know I got what I deserved, a solid eight hours of traffic school.

When I became the Supervising Judge of the Los Angeles Traffic Court in 1975, I also became obnoxiously self-righteous about traffic safety. I was a cautious (euphemism for “pain in the ass”) driver. I didn’t get speeding tickets until some 25 years later. I made complete stops at stop signs, even when the streets were deserted. No need to speculate why I was out when the streets were deserted. And I can assure you that my unblemished driving record had nothing to do with my acquaintance with so many traffic officers in Los Angeles.

I will have you know it was, and probably still is, the largest traffic court in the world. It was heady being the so-called head or leader of the largest something in the world. Judge Burt Pines was then the Los Angeles City Attorney. He and I had a friendly disagreement about punishment for first time DUI (driving under the influence of alcohol) offenders. He wanted all first-time offenders to be sentenced to jail for a few days. I opted for a less draconian approach, a compelled educational program for first-time offenders with low to moderate breathalyzer readings.

The press seemed to favor my approach. I wonder why? After work I joined some reporters (that’s what they called them in those days) for some drinks at a local hangout in downtown Los Angeles. After a couple of martinis, one pointed his wet finger at me, and said something like, “You know what? You… you’re… right. That’s what you are… right.”

And then one day the court sanctioned a weekend meeting on traffic safety with ASAP–the Alcohol Safety Action Project. I still remember the acronym. Judges, city attorneys, public defenders and police personnel attended an intensive, concentrated program on alcohol abuse. At the end of the conference, we had a party. We were instructed, OK, to be more honest, invited, to drink as much as we could, and then blow into the breathalyzer test machine set up in the middle of the room. Like Steve Lopez, I could get smashed in the presence of law enforcement officers.

I have never been much of a drinker. To prove it, I used bourbon and Seven to get my BA (blood alcohol) reading to ascend. It is hard to believe, but in those days, 0.15 was considered a low reading. A defendant with a lower reading usually could plead guilty to a reduced reckless driving charge. Who knows how many drinks I had, but according to the experts, it was not that many. After about four or five drinks, I blew into the breathalyzer and registered a measly 0.11. The experts said I was on the way up to a 0.16 or maybe a 0.17. Luckily, I left the party before that occurred. When I reached my presumed 0.17, I couldn't have been a passenger, let alone a driver. That was when the toilet and I had an extended rendezvous. I recall the intricate design of the bathroom tile and thought, not bad for a hotel. Ever since then, I admire bathroom floor tile standing up.

Hooked on Language

On commercial television, you cannot use “foul” language in dialog or in the title of a show. I suppose that is why the new comedy series on CBS is entitled "$#*! My Dad Says." The symbols "symbolize" "forbidden" or "offensive" language. If we peel back the symbols, what word or words do you think will be revealed? Will we be repelled by some horrifically repugnant language, or undisturbed by an innocuous phrase like “horseshit,” or the more popular “bullshit”? But it could be something a little more risqué. I read in the New York Times last week that the geniuses at CBS had not taken into account that scads of viewers with DVR’s could not prerecord the series because many DVR’s do not recognize symbols. This oversight skewed their ratings. Apprehension over language can lose or make money.

Maybe that is what drives the effort in some quarters to mask language. Everyone, well at least most everyone I know, uses a racy word now and then, a word that could offend someone’s sensibilities. Perhaps rules that censor language on television and radio are helpful to sponsors who do not want to offend the viewers they coax to buy their products. Shows on noncommercial television, like HBO, for example, have dialog and scenes that would make Howard Stern blush.

But judges can write opinions filled with vile epithets and boorish obscenities, uttered, indeed screamed, without the slightest attention to grammar or syntax. They simply quote from trial transcripts. That is the real world.

A strong expletive can be salutary. About 32 years ago, I was presiding over a criminal trial in Los Angeles Municipal Court. Who remembers what the case was about. The courtroom was packed with witnesses and court watchers. And who remembers why I was in such a bad mood. My mood must have been terrible, because the tension was so palpable, so high pitched, that stray dogs within a mile of the courthouse were barking their heads off. I snapped at the lawyers. “Sustained,” voiced almost simultaneously with the objection. My tone was sharp, clipped, reflecting annoyance and impatience.

The back door opened and Linda Schwartz, a public defender who was a good friend, walked into the courtroom to calendar a matter with the clerk. Apparently she could not help but sense the tension. At the conclusion of a witness's testimony, she said, “May I approach the bench, Your Honor?”

“Yes, you may,” I said, as puzzled as were the attorneys. She opened the small swinging gates, passed by the clerk, and approached the bench from the side. I leaned over and she rested one foot on the first of the three steps that led up to the bench. “You are acting like a real …." I hesitate to use the word, not because I am squeamish, but because she was right. You probably can guess what she said. Rather not? It was the same expression used by George Bush to describe a New York Times reporter he disliked. He voiced his opinion to Dick Cheney when he thought the microphone was off during a Labor Day campaign rally. Only Bush emphasized the derisive phrase describing the reporter with the adjectives, "major league." Some people were overwrought by the expression. I said, “Big #*@^ing deal.”

It took a moment for Linda's assessment to sink in. I called a brief recess and snuck into my chambers. I laughed to hide my embarrassment. Linda walked in and I asked her how she was going to spend her next five days in jail. But I could not hold her in contempt when I was the one acting contemptuously. After thanking her for the rude awakening, I let her off with a warning to myself not to do it again. I took the bench and resumed the trial. My demeanor must have said it all, because I could feel the atmosphere cool down.

It just proves that judges, like everyone else, can be angry, depressed, frustrated and act like major-league… jerks (a euphemism). Sometimes, a swiftly delivered expletive (term make popular by another President) is a good way to snap out of it.

I know a judge who is so well balanced, so insightful, so attuned to people that she never needs to be on the receiving end of an expletive. Marin County Superior Court Judge Lynn Duryee is well known and admired throughout the state. She has written columns for the Daily Journal and writes a regular column for The Bench, the official newsletter of the California Judges Association. She was past Dean of California’s prestigious Judges College. Judge Duryee has directed her talents to writing a novel, recently published, “Hooked on Drug Court.”

This engrossing book is about a case in drug court. The characters are the people involved in the case the juvenile, her parents, the probation officer, and the judge. In the hilarious comedy "Noises Off," playwright Michael Frayn takes us behind the scenes to see the actors' lives off stage. But a court proceeding, while superficially sharing some aspects of theater, takes place on a stage where litigants and witnesses would rather not be. Judge Duryee takes us behind the scenes of the formal court proceedings and reveals the poignant drama occurring when court is not in session. She probes deeply into the characters' lives and psyches to reveal the chain of events that brought them to court. They become caught up in the court system in large part because they are caught up in their fears, misapprehensions, angers, and destructive patterns of behavior.

A fifteen-year-old girl, Andy, winds up in Juvenile Court after she is busted for being under the influence during a weekend visitation with her divorced father who is engaged in World War III with Andy's mother, his ex-wife. Thrown into the maelstrom are a seemingly sclerotic judge with a complicated love life, the probation officer, and other players who bring mystery and additional conflict to the drama. They inhabit the pages of a book you don't want to stop reading. All are involved in a journey of self-discovery, and the road has its potholes, detours, and chasms. Nothing is watered down. It's the real thing. It's authentic. Duryee's unerring ear captures the speech patterns of real people, not an expletive deleted. The title of each chapter is a character's name. We know them intimately through their interior monologs and through their interaction with other characters. We are drawn into their world and we care about them.

The main character Andy is a modern-day Holden Caufield. Only her angst comes not from her sensitivity to the phonies in the world, but from the pain engendered by her parents' conflicts, which in turn lead to her debilitating drug use. Andy is exasperating, funny, likeable, loveable, and Duryee deftly tells her story so that we root for her, but at times want to scold and shake her too. We feel even more exasperation with her parents and, yes, also the judge. But they are full dimensional, and we cannot help but care about them.

Judge Lynn Duryee gives us a three-dimensional view of a case and the people it touches. Their journey toward understanding is hard, painful, joyful, frustrating, and fulfilling. It's one we all take no matter who we are or what is our position in life. It is the journey Socrates tells us is the only journey worth our while, the journey of self-knowledge. The invaluable insights Duryee provides along the way should help us on our own journey. "Hooked On Drug Court" is available on