Pardon the Interruption-Part II

This marks the 100^th birthday of the great Welsh poet Dylan Thomas.  So let us begin with a few lines from his poem Fern Hill.

“And fire green as grass,

 And nightly under the simple stars

As I rode to sleep the owls were bearing the farm away,

All the moon long I heard, blessed among stables, the nightjars

Flying with the ricks, and the horses

Flashing into the dark.” 

When I first read this poem in high school, I did not know what he was talking about.  Yet, I loved the lilting sound of the words, their unexpected, startling juxtaposition, the rhythm of the language that carried the reader or the listener forward on a captivating journey.  But when I thought more about the poem I came to realize Thomas was recalling his childhood in Wales.

         In college I read T.S. Eliot’s The Love Song of J. Alfred Prufrock, a far more intellectual poem.  The extraordinary opening line grabbed me by the throat and would not let go:  "Let us go now you and I where the evening is spread out against the sky like a patient etherized upon a table."  I liked the poem, but why I could not say.  But because I had to write a paper analyzing the poem, I had to understand it as best as I could.  This forced me to dig beneath its surface to gain insight into its meaning.  I also considered the analysis of critics and scholars.

         Most critics agreed that Prufrock spoke to the corrosive and emasculating effect of modern society on humankind.  Some thought “you” and “I” in the opening stanza reflected a dialog between Prufrock and an imaginary woman he did not have the courage to meet.  I posited that "you" and "I" were two aspects of the psyche within the same person. 

         At the time I could not have realized that my approach to the poem would be similar to what I and my colleagues do as judges.  The big difference is that what we read is not as inspiring, nor as enduring as poetry.  We analyze briefs and write about them.  But, like literary critics, we do not always come to the same conclusion and often see issues differently.  Our opinions that reflect our diverse analyses and interpretations can be equally convincing and valid.

         But in another respect, I never expected that my analysis of T.S. Eliot’s famous poem would visit me with a vengeance some 47 years later.  And this takes us back to my last month’s October column.  “Pardon the Interruption.”  You may recall I wrote about Martine Rothblatt's book "Virtually Human."  He wrote about modern technology allowing us to create cyber-conscious digital replicas of ourselves.  He has created one of his wife, called Bina48. 

         It is one thing for a column to engender discussion and debate, but I never expected to be confronted with what resulted from this column.  It stems from talented and resourceful lawyers.  Many are musicians, writers, and artists.  And some are scientists.  The staff at my court, under the coordination of research attorney Katy Graham, created a virtual replica of myself.

         I was thrilled and looked forward to a warm, enduring and beneficial partnership.  But if I had thought back to a peculiar concert at the Shrine Auditorium in Los Angeles I attended a few years ago, I would not have had such high expectations.  It featured the great jazz pianist Art Tatum.  Tatum’s prodigious technique and harmonic inventions were so awesome that even the great piano virtuoso Vladimir Horowitz listened to him.  When I was around 10 years old, my Dad took me to hear Tatum at Sardis, a club in Hollywood. I recall standing next to the piano and watching the blur of Tatum's fingers over the keyboard.

         But how could I attend this concert when Tatum had been dead for over 40 years?  This was a virtual concert.  Technicians had reproduced Tatum’s solo concert at the Shrine Auditorium in 1939 on a concert grand Steinway.  My wife and I were among the few people who showed up for the concert.  Sitting in the cavernous Shrine Auditorium watching a Steinway piano play without a player was creepy.  After a few numbers we had to get out of there.

         Interruption for advertisement.  Speaking of the Shrine Auditorium, and a piano player named Art, I will be playing the piano there for a Veterans Day Concert with the award winning Big Band of Barristers conducted by Gary Greene, Esq. on Sunday, November 9^th, at 3:00 p.m.  Doors open at 1:00 p.m.  Guest artists and the great singing group Singers-In-Law will be performing.  Free tickets are available if you click on www.BigBandGig.eventbrite.com.  You will find that lawyers swing.  End of advertisement.  

         But getting back to my virtual self.  I had such high hopes.  It's a long drive to Ventura.  I thought it would allow me to work at home more often.  My cyberself Arthur 2 could take care of routine cases and sign orders.  But to be perfectly frank, I don’t trust him.  We seldom see eye to eye on anything.  He wants to do the hard cases.  That’s fine with me, but he gets the wrong results.  He is much tougher than I am on continuances.  Now I have to drive up more often to keep an eye on him.  And get this, he objects to the name Arthur 2.  What?  He should be Arthur 1?   No way. And he constantly interrupts me.  He is a pain in the ass.

         I want to get rid of him.  But like Prufrock he is a part of me.  Let’s face it, we can’t get away from ourselves.  And at least Arthur 2 and I have some things in common.  For example we both love Dylan Thomas.  Of course, I cannot know how many years I have left, and Arthur 2 could be around years after I am gone.  But Arthur 2 knows that “forever” is a dream.  We have told each other:

“Do not go gentle into that good night,

Old age should burn and rave at close of day;

Rage, rage against the dying of the light.”

Pardon The Interruption

     A few months ago I was at a "bar event."  They are all the same.  Lawyers and judges schmooze over h 'oeuvres and drinks.  (Will not stoop to "schmooze over booze.")  So here I am talking to retired Superior Court Judge Burt Pines.  In mid-sentence, a well-known lawyer comes by and says, "Hello Justice Gilbert," and, before I can respond, he begins talking to Burt Pines.  Halfway into his sentence I interrupt him and say, "Nice ploy.  Here I am talking to Burt and you also want to talk to him.  You interrupt our conversation, acknowledge me with a salutation, and then quickly take over the conversation by speaking to Burt." 

         The lawyer is now embarrassed and apologizes all over the place.  I tell him not to worry, that I am glad he interrupted us.  It will make a good subject for my column.  He is now sick with worry.  I try to assuage his distress with the assurance that I will probably not use his name.

         In the middle of this discussion, two other lawyers come by and begin talking to the now-sweating attorney.  "It must be contagious," I remark.  "These two lawyers are doing to us what you did moments ago to me."  Burt Pines takes all this in with a bemused expression on his face. 

         The two new interrupting lawyers look puzzled.  I explain to them, as I had to the first interrupting lawyer, that they had interrupted us, much to the relief of the first interrupting lawyer.  They, like the first interrupting lawyer, begin falling over themselves with apologies.  I tell them not to worry.  In fact, I thank them.  "This will be good material for my column."  Now they too are sweating… profusely.  Just then a server with a tray of shrimp comes by and interrupts us.  "Would you like some shrimp?"  I love shrimp, probably because I am short.  I decide not to chastise the server.  As I reach for the shrimp, the three lawyers I have been talking to, all of whom tower over me, leave.  I turn to Burt Pines, who is also much taller than I.  He is nowhere to be found.

         Of course judges, including yours truly, have from time to time interrupted lawyers arguing a case in court.  So it's only fair that they get to do the same thing to a judge when out of the courtroom.  And I did interrupt them when they interrupted me.  So I was not in the least offended by their interruptions, even though the private detective I hired to follow them overheard them express the hope I would retire soon.  Perhaps in the next few years, it could happen.  The law in California has recently been clarified concerning post-employment options for retired judges.   See Gilbert v. Chiang 2014 LEXIS 6391. 

But retirees, like old soldiers, fade away.  I was speaking with some young lawyers and mentioned Malcolm Lucas.  "Who?"  They asked.  "Are you kidding?"  I replied.  "He was only the Chief Justice of California."  Their reply, "But when?  If it's over a decade, it's ancient history."  That they were entertainment lawyers is beside the point.  The point is "when you are gone, you are gone." 

Perhaps that is why some people are loath to retire.  But to forestall retirement from one's work or profession does not offer refuge from the ultimate retirement.  I learned this when I was a mere five years old. 

         To this day, I recall an elderly lady who was a family friend.  Her beloved Pomeranian had died and, in the parlance of a five year old, she had it "stuffed."  My mother used the euphemism "preserved."  On a visit to the elderly lady one afternoon (you think I remember her name?), she asked me if I would like to see her dog "Cookie."  I said that would be O.K.  At that time, I did not know all that much about death.    

         The elderly lady went to "fetch" Cookie.  She took him off a shelf in her closet and brought him out to "meet the guests."  She put Cookie on the floor in front of me.  I had a little rubber ball which I threw for Cooke to retrieve.  Cookie did not move.  Being the precocious five year old that I was, I determined that neither Cookie nor the elderly lady were all there.  At that moment it became apparent to me that death was my enemy and that in the end it would defeat me just as it did Cookie and in due time the elderly lady. 

         This takes me to Jeremy Bentham, the founder of the Utilitarian School of Philosophy.  He had a unique solution to the predicament of losing control after he died.

         Bentham was the inspiration for the creation of the University College London which opened in 1826.  University College London was open to all regardless of race, creed or political belief.  Bentham left his estate as an endowment to the university, along with his papers, on condition that his body be preserved "in a chair usually occupied by me when living, in the attitude in which I am sitting when engaged in thought in the course of time employed in writing."  The writing style of philosophers has not changed much in the last few hundred years.

         Bentham's wishes were carried out when his embalmed body was placed in a cabinet called the "Auto-Icon" in the hallway of the university.  The Auto-Icon has been wheeled in for important meetings of the college council.  Rumor has it that when the vote is tied, Bentham breaks the tie by a vote in "favour" of the pending motion.

         My wife Barbara and I had the pleasure of meeting Mr. Bentham many years ago when a professor friend of ours at University College opened the Auto-Icon and introduced me to the good philosopher.  Mr. Bentham was most congenial and we got along famously.  In fact, I wrote a column about our meeting.  I considered following Mr. Bentham's suit and, after my demise, being wheeled into conferences in my Division 6 of the Court of Appeal.

         But that would be as silly as the Chinese empress who had her husband's embalmed corpse accompany her on her peregrinations throughout the kingdom.  The only advantage was that she got to do all the talking.  But technology may provide a better answer.

         In his new book "Virtually Human," Martine Rothblatt, the brilliant transgender scientist, philosopher, business tycoon, argues that the day of the mind clone is just around the corner.  Technology is close to producing digital copies of ourselves.  Yes, "cyberconscious" digital entities are separate conscious entities who paradoxically are us.  Rothblatt has created such an entity of his wife called Bina48.  She talks and has views about things.  I think she wants to vote in the next presidential election.

         Alive or dead I may be able to retire and leave my virtual self at the court.  I could go into private or public practice and yet still be on the bench.  I would have two jobs.  Not to worry.  I would not appear in front of myself.  Aside from the conflict of interest, I hate to be interrupted.

What We Can Learn Before Our Tenth Decade

     This turns out to be the second column in a two-part series on exceptional nonagenarians I am privileged to know. 

         Last month I wrote about premier jurist Judge Ruggero Aldisert, age 94.  The title of his recent novel, "Almost the Truth," expresses what savvy lawyers and judges know:  The closest we can come to reaching the truth is "almost."  And "almost," most times, is unattainable. 

         Despite the bravado and confidence that judges and lawyers on occasion display, those who are truly enlightened know that the law is enveloped in a vapor of uncertainty. They must live with the apprehension and dread concealed beneath the surface of self-assurance.

         Of course this phenomenon occurs in every profession and in our lives.  Innumerable possibilities confront us every day, altering our plans and perceptions in unexpected ways.  But when it comes to the law, the public expects a high degree of certainty.  A client pulls his hair out when his lawyer answers a question with the truthful, but equivocal, "On the one hand ...."

         To make matters worse, I read that our U.S. Supreme Court contributes to the problem.  In The New York Times on May 25, a front page story appeared about justices on the high court making changes in their opinions long after the opinion has been published in the official reports.  This may be a good way to correct a mistake, but can create a nightmare for lower courts and attorneys trying to interpret the law. 

         My concern about uncertainty takes me to another exceptional nonagenarian, an extraordinary artist and writer, Charles Embree, age 95.  His insights about the inscrutability of our world could provide a way to cope or at least accept and live in harmony with unpredictability. 

         I met Charles several years ago when my name appeared for the umpteenth time on the ballot for the retention election for Court of Appeal justices.  The ballot simply asked for a "yes" or "no" vote.  But to the uninformed voter (most of them) the choice, if made, was at best a coin flip.  I can assure you that a palpable sense of uncertainty haunts the justice whose name appears on the ballot.  That appellate justices are rarely, if ever, defeated in retention elections is no solace.  As my good friend, the late Justice William Masterson, said after winning an election with over 80 percent of the vote, "What do the 350,647 voters who voted no have against me?" 

         At the time of my election, I was playing the piano with a group of jazz musicians that got together weekly to "jam."  Charles showed up now and then and occasionally played trumpet.  We had exchanged only a few words.  But just before the election, he left a note on the piano for me.  It read:  "Not all judges are piano players, but certainly all piano players are judges.  They sit on a bench and hand down decisions to fingers directing them on which key to strike in what order and when.  The sound heard is the soundness of the judgment rendered.  If the music is select, you must elect!  Based on this argument you will be receiving my vote in the upcoming contest."

         This elegantly written argument was how Charles resolved uncertainty in a particular situation.  It should come as no surprise that Charles and I became instant and close friends.  His words appear in the opening pages of my book "Under Submission" (The Rutter Group, 2008).  The remarkable art work on the cover was done by his late wife, Barbara, who studied with the great French painter Fernand Léger.

         Charles' background and brilliant career no doubt heightened his awareness of our uncertain world.  He was a pupil of the American artist Thomas Hart Benton.  Charles' lithograph of a jam session in Harlem is a classic.  Charles was also a member of the famed Iowa Writers' Workshop and there struck up a close friendship with the master American short story writer, Flannery O'Connor.  For over a decade he wrote fiction for Esquire Magazine, a series of stories about jazz musicians in the 1950's.  He produced a jazz album featuring actor, singer, and musician Scatman Crothers, and the great trombonist Vic Dickenson for Capital Records.

         Charles and I often discuss the indeterminate nature of our world.  No wonder no one wants to join us.  With his signature wit and irony, including a veiled reference to an old jazz standard, Charles, in verse, points out that the sub-atomic world of which we are all a part necessarily makes our lives uncertain.  We must learn to live with paradox and doubt.  

THE SUB-ATOMIC LIFE IS NOT WORTH LIVING

Is there is or is there ain't a

Maybe?

From what I hear there's no more room

For doubt;

Uncertainty now is certain,

Maybe's time is time that's done run out.

"The unexamined life is not worth living,"

Once said by one of the wisest of men,

Was said when life could be examined,

But now is now, and then was then.

Today it is known

And can be shown,

The very act

Of observing a fact

Changes the fact

Observed.

What have we learned from

What can't be known?

What have we seen from

What can't be shown?

When is a There

If a Now is one?

Yet how can a Now

Be before a Begun?

It's all like a joke

Without the fun.

I told Charles that for some people this insight is too much to bear.  And although religion can be a soothing palliative or a sound foundation for certainty, I asked if there was yet some other way for us to cope in an uncertain world.  Charles responded with this personal reflection.

 

ON THE OTHER HAND

Gazing at the ceiling of the Sistine Chapel, one sees a hand

reaching out to another hand, the fingers almost touching.  The

hand reaching out is God's, the other hand belongs to an

ancestor of mine.  That's the hand I inherited.

I learned of this when I was a baby, before I could talk and while I

was just beginning to walk.  It is said that long-term memory

improves with old age.  At 95, I submit the following picture as

evidence:

My mother is sitting in a rocking chair, in the dining room of our

home.  Between the dining room and the living room is an area of

bare floor.  The baby described above has fallen and is lying on

his stomach, crying.  My older brother starts to go and help me

up.  My mother raises her hand, and says, "Let him do it for

himself."  Believe it, or not, I can see this picture, now, in detail.

It's a Norman Rockwell magazine cover.  All that's lacking is the

caption: "LOVE."  (Come to think of it, Mr. Rockwell's style did not

employ irony.)

Today I have a friend, associated with a large philanthropic

foundation, whose task it is to help create a social program for

providing help to the country's impoverished.  A baby has fallen

and is crying for help in getting up.

The question in my mind, put there by the memory recalled, is

which is the better way of helping someone in need; go to their

aid directly, as my brother instinctively started to do, or do

as my mother did, help by trying to help me help myself?  To be

frank, I don't know, after all these years, what my own experience

taught me. I am inclined to believe, however, that as well intentioned

as my mother was, I would have benefited more by

the direct out-reaching hand of my brother.  Love, unreasoned.

Nearing the end of a typically eventful life, if I were asked to name

the greatest thing a human being can experience, I would say it

is simply the touch of a loving hand.

Michelangelo knew what he was doing.  All the rest is what it is ....

          So the simple touch of a loving hand gives us the power and strength to live and endure in an uncertain world.  This is perfectly compatible, even necessary in the often contentious legal profession.  And Judge Learned Hand found a way for a good lawyer to approach certainty in the legal profession.  In speaking in memory of lawyer, Charles Neave, Hand said:  "With the courage which only comes of justified self-confidence, he dared to rest his case upon its strongest point, and so avoided that appearance of weakness and uncertainty which comes of a clutter of arguments.  Few lawyers are willing to do this; it is the mark of the most distinguished talent."