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.