Wednesday, August 20, 2014

Almost The Truth

     To repeat what I have often said, we judges and lawyers are storytellers.  Every lawsuit, every judicial opinion involves a story.  One of the best is found in the short opening paragraph in Palsgraf v. The Long Island Railroad Company, 248 N.Y. 339 (1928).  Plaintiff Palsgraf is waiting on the platform of defendant’s station for the train to Rockaway Beach.  She is injured when scales fall on her.
         A train bound for a destination other than Rockaway Beach is pulling away from the station.  Two men are running along the platform to reach the train.  One of them jumps aboard without mishap.  The other man carrying a small package also succeeds in getting on board, but with a helping hand from a guard on the train, and a push from behind from the guard on the platform.  The small package contains "fireworks" and is “dislodged.”  When it falls on the rails, it explodes.
         The shock from the explosion causes the scales at the other end of the platform to fall on the hapless Ms. Palsgraf.  (The prescient Judge Benjamin Cardozo chose the neutral "plaintiff" rather than "Mrs." as the appellation.)
         Cardozo’s elegant writing aside, how could the fireworks explode if they were not lit?  When I was a kid, a long, long time ago, I went to Chinatown with my father in early July and we bought "fireworks."  This included firecrackers, rockets, pinwheels and sparklers.  The purchase in a back alley may have constituted a "transgression" of the Penal Code.  (I guess the Palsgraf case has put me in a 1920’s frame of mind.  In Palsgraf, the reader will be charmed by such words as "valise.")  As my dad and I got into our 1950 Plymouth, I dropped the package of fireworks.  And guess what?  They did not explode.  O.K.  I was not running to catch a train, but still.  
         This takes me to my thesis about stories.  The story that is first told to the lawyer by the client becomes a story told to a judge and sometimes a jury in a trial court.  And that story may be transformed into stories written in briefs, which become a story in an appellate opinion, and may even become a story told in the United States Supreme Court reports.  But these stories are not truly true stories.  Don’t get me wrong.  I am not suggesting anyone is lying.  But reconstructing facts remembered or imagined in the past does not shine a light on the unadorned truth.  Most of our stories in law or elsewhere are, at best, almost the truth.
         And that takes me to one of our country’s leading jurists, Judge Ruggero Aldisert.  In two weeks, at the age of 94, he will retire as Judge Emeritus of the U.S. Court of Appeals for the Third Circuit, with jurisdiction extending over Pennsylvania, New Jersey, Delaware, and the Virgin islands.  During his brief judicial career, a mere 52 years or so (they go by quickly when you love your work), he has taught me and countless other judges throughout the country and the world how to be the best at what we do.  How successful a student I have been I leave to others, but the six books he has authored have been invaluable to me and my colleagues throughout the country.  They are:  The Judicial Process: Text, Materials and Cases (2d ed. 1996) West Publishing Co.; Logic for Lawyers: A Guide to Clear Legal Thinking (3d ed. 1997) National Institute for Trial Advocacy; Winning on Appeal: Better Briefs and Oral Argument (2d ed. 2003) National Institute for Trial Advocacy; Road to the Robes: A Federal Judge Recollects Young Years & Early Times (2005) AuthorHouse; A Judge’s Advice: 50 Years on the Bench (2011) Carolina Academic Press; Opinion Writing (3d ed. 2012) Carolina Academic Press.  Add to this more than 50 law review articles and countless lectures to judges and lawyers throughout the world.
         But did I say six books?  Pardon the slip.  I just finished reading the seventh, Almost the Truth, A Novel of the Forties and the Sixties, published by AuthorHouse, 2014.  Drawing upon his experience as lawyer and judge and as a major in the U.S. Marines during World War II, Aldisert (here I refer to him as a fiction writer) has written a compelling narrative brimming with action, suspense, and intrigue that grabs the reader by the throat.  (Reviewer parlance.)  Not to worry, no spoilers here.
         Set during and after World War II, Aldisert’s story involves clandestine operations of the OSS during the Nazi occupation of Rome, and a trial that confronts and confounds us with an examination of what in fact is the truth.  The interplay between legal procedure and relevant facts forces us to acknowledge both the law's grandeur and its unavoidable limitations.
         When he took senior status in the mid-1980’s, Chief Judge Aldisert moved to Santa Barbara where he established chambers and took on a full case load.  I, along with several local judges, have had the privilege of knowing the venerable Rugi.  He has instructed me, as a friend, to address him as such.
         My favorite judge, Rugi, who hit a hole-in-one on the golf course last year, will be active as ever in retirement.  I suspect there will be more books and more holes-in-one to come.  I know and love Rugi.  But I assure you my review of Almost the Truth is completely objective.  That is the truth. 

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