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.
Monday, March 07, 2011
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.
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.
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