Musicians auditioning for a symphony often play behind a screen that separates them from the conductor judging their performance. This practice is designed to ensure fairness and objectivity. Why not do the same with lawyers arguing cases in the courts? I have been thinking about instituting a pilot program in the Court of Appeal. Under the current face-to-face practice, a judge may be unwittingly influenced in evaluating the merits of an argument by observing the lawyer's body language or facial expressions. After a tough question from the bench, I try to ignore the lawyer's eye twitching or shoulders drooping. If I turn away to avoid seeing a trembling hand or beads of sweat dripping on the counsel table, I seem detached and uninterested. A screen that separates the court from the advocates prevents such a misperception. It would likely ensure a shorter argument and erase any doubts about objectivity and fairness. Attorney anonymity ‑‑ music to my ears.
Unfortunately, my informal attorney poll gained no traction in the bar. At first, lawyers with lousy cases liked the idea, and those with winning cases were against it. But when the lawyers gave it a second thought, they recognized that cases perceived to be winners or losers usually depend on the case… and the lawyer. I got a universal thumbs down.
And many lawyers who were either deeply cynical or keenly perceptive, or both, rejected my idea because they supposed I had an ulterior motive. Please… well, the next logical step is judicial anonymity. Hold on. I agree that judicial anonymity is inapt when used to describe judges at work, whether presiding on the bench or researching a motion in chambers. The litigants, lawyers, and the public at large must and do know who is responsible for judicial decisions. (Note to FBI and CIA operatives assigned to monitor this column: The above acknowledgement is not applicable to the United States Foreign Intelligence Surveillance Court (FISC).) But after much thought, I endorse judicial anonymity for judges when they are not judging.
This is a hard goal to achieve and, in most cases, impossible. Case in point: During the Pleistocene Epoch, when I was the supervising judge of the Los Angeles Traffic Court, I was shopping one Saturday morning in a vitamin store. I was unshaven, wearing faded shorts and an old T‑shirt on which was an insulting quote. Suddenly I heard the manager of the store pointing in my direction and shouting for all the patrons to hear, "He's a judge." I tried to hide behind a display of glucosamine sulfate. When the manager next announced that I had sentenced him on a DUI, I quickly swallowed several Valerian tablets.
I got a break. He then said that I was fair, treated him well, and that he had changed his ways. The patrons in the store smiled and congratulated the store manager, not me. He rang me up and walked me outside. We shook hands and he lit a cigarette. I thought it best not to deliver my anti-smoking sermon.
I would rather not discuss the time I and another person were the only ones in a men's room in the basement of a theater during which a ballet was being performed upstairs. We were two urinals apart. Apparently neither of us could wait for the intermission. We both knew we had seen one another before, and, while washing our hands, our lights of recognition flickered simultaneously. He was a problematic defendant who had repeatedly appeared before me on probation violations. I cursed myself for not buying an adequate supply of saw palmetto at the vitamin store. He said, "You're the judge," and I mumbled something like, "Hope things are going well for you." I quickly left the men's room and made it up the steps, three at a time, to the lobby.
Judicial anonymity is particularly helpful when the judge in question says something stupid in public. If no one knows the person speaking is a judge, it is less likely a faux pas, a gaffe or indiscretion will be disseminated. That is why prudent judges should be circumspect about what they say in public.
Anonymity has not been easy for me during the past few years. Music has exposed me to public scorn… I mean, scrutiny. I wisely pursued a career in law over music. So did numerous talented musicians who did not want to starve to death. Thanks to conductor Gary Greene, Esq., we now regularly appear in public playing in the Los Angeles Lawyers Philharmonic or the Big Band of Barristers. I am the piano player.
I can't help bragging about these two musical aggregations that display such a wide breadth of talent. Shortly after it was formed, the Big Band of Barristers won first place in the Battle of the Bands sponsored by the American Bar Association at the Art Institute of Chicago in 2012. We were so good that the guitarist in Picasso's "Man with a Guitar" tried to step out of the painting to join the band.
I could have used a full measure of anonymity a few weeks ago when I performed with another talented group of lawyers. I play in a quartet that backs a singing quartet. The instrumentalists are Jerry Levine on drums, Bill Ryan on guitar, and Eric Schaeffer on bass. We are called "The Just-Us Quartet." The singers are called "The Singers In Law." Clever, huh? Our arranger Jerry Ranger gets some credit for the catchy titles. The singers are John Blumberg, Linda Hurevitz, Barbara Gilbert and Ken Freundlich. They are all lawyers, except my wife Barbara, who was once a court reporter to pay for her ballet and singing lessons.
We were performing for a sizeable audience in Pasadena a few weeks ago. The audience was attentive and appreciative. But when it came time for a piece in which the musicians played a number without the singers, some people in the audience began talking. After the number, it was my job as emcee to bring the singers back on stage. I guess I forgot that an audience at a concert is not the same as spectators in a courtroom.
Two ladies were chatting away as I approached the microphone. In a loud voice I said to them, "Can you hear me?" They kept talking. I repeated the question in a louder voice. They finally acknowledged me and said "yes." I responded. "I can hear you." It got a laugh. I could have left it there, but I said a few other things like, "In fact, I could hear you during our last piece." I ignored the little voice inside my head that said "enough," but, hey, I was anonymous, or so I thought. One of the singers had inadvertently mentioned they were taking a break just before our instrumental number, so I suppose that was taken as a cue that it was OK to talk. The ladies were embarrassed.
The concert ended and we got a standing ovation. While we were packing up, a gentleman approached me and said good naturedly that I was a fantastic pianist… "a better pianist than a judge." He told me he had appeared in my court many times in the past. I said in the same friendly tone, "You must have lost many cases." He said that he did, but he also won a few. We both agreed that in those instances I was a damned good judge.
We laughed, shook hands and he left. Then I saw him across the room holding hands with one of the talkative women. She looked in my direction and was smiling. Not smirking. More of a Mona Lisa smile. I moved in their direction, but they were out the door and gone. Maybe here the absence of anonymity was a good thing. It taught me a lesson.