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.

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