THE NEXT TRAIN TO ROCKAWAY BEACH

     On Labor Day, 41 years ago, Justice Stanley Mosk swore me in as a judge of the Los Angeles Municipal Court.  Within a few days of this depressing… I mean significant anniversary, the Daily Journal published my 252^nd column.  How best to describe the column?  In my imagination, a perceptive reviewer would write:  "An adventurous read of a profusion of topics artistically tied together by a common thread that may escape readers unaccustomed or hostile to subtlety."

          The overriding topic in that column was, in a word, "short."  I am shorter than I was at the beginning of my judicial career four decades ago.  I received supportive comments that it's O.K. to be short… from short people and elderly people who are shrinking.  I also received emails in praise of short opinions.  Significantly, none came from the Supreme Court. 

I wrote about the celebrated Palsgraf case, the premier example of a masterfully written short opinion.  (Palsgraf v. Long Island Railroad Co., 248 N.Y. 339 (1928).)  By coincidence, just at the time my September column appeared, I spoke to a group of young law students at UCLA School of Law who were serving as externs at the Second District Court of Appeal.  As an example of good writing, I read to them the facts in the Palsgraf opinion.  You will recall that a man carrying a small package jumped aboard a train as it was pulling out of the station.  The package, which contained fireworks, fell from his grasp onto the tracks and exploded.  The shock caused scales at the end of the platform to fall on and injure plaintiff Ms. Palsgraf.

The students looked puzzled.  "What are scales?" they asked.  I was dumbfounded.  "Scales?" I asked rhetorically.  "Does anyone here work out in the gym?"  Nods and a few "yeahs."  "Do you ever weigh yourself on the scales?  And doesn't the doctor weigh you on the scales in her office?"  Blank looks from everyone.  It is bad enough that age makes us shorter, but does it make our language archaic?  Then one student accepted my explanation of scales, "O.K., fine, scales weigh you.  But why would anyone want to weigh themselves or anything at a train station?"  I think I settled the issue.  I patiently explained that a passenger might need to weigh his or her valise. 

In my discussion of the Palsgraf case, however, I also had a question.  How could a small package of fireworks falling on the tracks explode with such magnitude that it causes scales at the end of the platform to topple down on poor Ms. Palsgraf?  I had in mind a large Otis scale with a weighing platform at the base, a long neck reaching up to a large round dial with an arrow denoting pounds.

Attorney Michael Sokolich wrote to me that when he was in law school he too wondered about how the fireworks in Palsgraf could explode if a fuse was not lit.  When I was in law school, I was too scared to ask that question of our intimidating professor, Dean Prosser.  Sokolich explains that there used to be types of fireworks that explode on contact with the ground or any hard surface.  An example is "cracker balls," that explode when thrown at a hard surface.  I remember them.  But as Sokolich points out, they were pea-sized and did not have much power.  He posits that the likely explanation is that at the time Palsgraf was decided there was a class of larger fireworks called "torpedoes" that may have been the culprits.  Maybe so, but the package of fireworks that allegedly caused the explosion in Palsgraf was only "about 15 inches long."  Like questions concerning the meaning of life, or why we or our tempers get shorter, we are not likely to know the answer to the Palsgraf fireworks question. 

But I was particularly impressed with Sokolich's wise observation that "older cases . . . are usually models of brevity and clarity.  The same with our statutes, older usually means shorter." 

But getting back to fireworks and torpedoes.  The California Supreme Court has adopted a new policy concerning petitions for review.  The policy was apparently provoked by Vergara v. State of California et al., 246 Cal.App.4th 619 (2016).  The case involved the constitutionality of various provisions of the Education Code.  At the conclusion of the published opinion is a "STATEMENT" by the Chief Justice.  The statement sets forth a policy concerning statements by justices who dissent from the denial of a petition for review.  Those dissenting statements will be published and appended to the original appellate opinion in the Official Reports.  The Chief's STATEMENT reminds us that "an order denying review does not reflect the views of the justices voting to deny review concerning the merits of the decision below." 

Something like this practice is common with United States Supreme Court justices who wish to grant certiorari when their colleagues vote to deny.  Such a justice might write in the order denying certiorari a brief reason why he or she would grant cert.  In Vergara, Justices Liu, Cuéllar, and Chin voted to grant review.  But Justices Liu and Cuéllar wrote published dissents to support, not just their reasons for wishing to grant review, but to criticize the Vergara opinion.  We appreciate insight into why a particular Supreme Court justice believes review should be granted.  But if the dissenting views on a petition for review become tantamount to opinions critiquing the Court of Appeal opinion, the precedential value of the Court of Appeal opinion is diminished. 

Maybe that is what the dissenting justices wish to accomplish, but certainty and predictability suffer.  I fear this rule could morph into something even more scary.  Imagine for a moment that Justice Chin, who also voted to grant review in Vergara, did so because he agreed with the opinion but thought the Supreme Court should speak to the issues.  What if he wrote a dissenting opinion, dissenting from the opinions of Justices Liu and Cuéllar?  Oh dear!  And what if the justices voting to deny review weighed in with opinions of their own? 

It stands to reason that from my perspective this new policy is unnerving.  If one of my published opinions is harshly criticized by one or more dissenting Supreme Court justices wishing to grant review, I will feel like Ms. Palsgraf.  Only it will be the scales of justice that fall on me.  Such an event would be so… so… unforeseeable.  I just might pack my valise and catch the next train to Rockaway Beach.  

SHORT IS GOOD

     I am a strong proponent… No, I need a more forceful adjective.  How about “obsessive”?  Yes, …an obsessive proponent, advocate, champion for short opinions.  Is anyone listening?  Not the United States Supreme Court and not many of my distinguished colleagues in our state courts.  We limit the number of pages in briefs that lawyers file in our courts.  Judges should adhere to a similar rule.

We know all the arguments favoring short opinions advanced by a host of commentators, which include Garner, Aldisert, Leflar, and Witkin, to name a few.  With me, it has become an…oh, yes, I already said, "obsession."  "Fixation" probably doesn't add much.  But you get the idea.  But why such an all-encompassing preoccupation?  Recently I experienced an epiphany in an environment far removed from the law.  That lawyers and judges were present had nothing to do with my insight.

         A few months ago musicians and singers, all of whom were in the legal profession, performed a "rock and roll" medley of songs from the 50's and 60's written by famed composer Richard Sherman.  The concert at Disney Hall featured the Los Angeles Lawyers Philharmonic conducted by Maestro Gary Greene, Esq.  The singers included Judge Curtis Kin, Linda Hurevitz, and Ken Freundlich.  The musicians were Bill Ryan on guitar, Eric Schaefer on bass, Jerry Levine on drums, and yours truly on keyboards (a misnomer)‑‑it was only one keyboard, electric (ugh), not a real piano, or, as they call it in the profession, an "acoustic" piano.

Rock and Roll from any era is not my genre.  But playing in this concert was a treat, because it was in honor of the personable and warm-hearted composer Richard Sherman, winner of two Academy Awards, The National Medal of Arts, and numerous other awards.  Richard was present and told me how much he enjoyed the concert. 

The tunes we played included "Pineapple Princess" and "You're Sixteen."  (Don't I wish).  But one tune in particular upset me, "Tall Paul."  The lyrics make a big deal about stupid Paul just because he's tall.  Of course it bothered me because I’m short, not the most impressive attribute to have in high school…when you are sixteen. 

And with advancing age, I'm getting shorter.  I have been called the "incredible shrinking judge."  I have nightmares about the movie "The Fly."  In the final scene of the early 1958 film classic, the hero who has turned into a fly is nearly invisible caught in a spider's web.  I still identify with this creature crying out in his small, high-pitched voice, "Help me, help me." 

So it is possible that my bias in favor of short opinions stems from my height… or lack of it.  Yet that should not detract from my argument that generally shorter opinions more clearly explicate the law than longer ones.  Only, like the plight of the fly, no one appears to hear my cry for shorter opinions, despite the universal acknowledgement that "less is more."  I would amend the maxim of jurisprudence enshrined in Civil Code section 3537 so that it would read: "Superfluity does vitiate."

Some of our nation's great jurists wrote short opinions.  I have often remarked about Justice Cardozo and his famous Palsgraf opinion.  Twenty-seven years ago I wrote in the Daily Journal:

"I don’t think writing comes easy.  It requires effort and commitment to write something of quality.  A good finished product comes from several drafts, whether it be an article, a hate letter or a shopping list.  It’s even harder to write an opinion that is lucid and concise.  Take for example the famous opinion in Palsgraf v. Long Island Railroad Co., 248 N.Y. 339 (1928).  It is a paradigm of simplicity and clarity.  Here is the statement of facts:

“‘Plaintiff was standing on a platform of defendant’s railroad after buying a ticket to go to Rockaway beach.  A train stopped at the station, bound for another place.  Two men ran forward to catch it.  One of the men reached the platform of the car without mishap, though the train was already moving.  The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall.  A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind.  In this act, the package was dislodged, and fell upon the rails.  It was a package of small size, about fifteen inches long, and was covered by a newspaper.  In fact, it contained fireworks, but there was nothing in its appearance to give notice of its contents.  The fireworks when they fell exploded.  The shock of the explosion threw down some scales at the other end of the platform many feet away.  The scales struck the plaintiff, causing injuries for which she sues.’”

Cardozo pointed out that an over-emphasis on details obscures meaning, and the Palsgraf opinion makes the point with just the right amount of detail.  Yet, even the writing in Palsgraf has been criticized.  I read recently that one critic complained that there was no need to mention two men running for the train.  His point, who cares about the guy who made it to the platform of the moving train without mishap?  He has nothing to do with the case.  The person of interest is the one who was unsteady, requiring the guards' help, which caused him to drop the small package of fireworks.  

Not sure I agree with that assessment.  With an economy of words, Cardozo vividly describes the entire scene.  Two men are running for the train.  The less agile, and probably the taller one, needed help.  In my opinion the scene lacks impact without reference to the shorter, more nimble, of the two men running for the train.  The words paint a picture the reader can visualize. 

Yes, these facts, so clear and concise, are nevertheless puzzling.  How, under these circumstances, could a small package of fireworks explode?  And how could such an "explosion" be of such force to cause scales at the other end of the platform to fall on poor Ms. Palsgraf?  Don’t you have to light fireworks?  Maybe a spark emanated from the engine, or maybe fireworks in the 1920’s were different than the firecrackers I lit as a kid.  Don't spread that last comment around please. 

I can hardly bring myself to say this, but could it be that the Palsgraf opinion is too short?  But then again is it necessary to know how the fireworks exploded?  I mean they did, right?  I have to think about this some more.  Oh gosh, this column is getting too long.  Better stop.  I’ll get back to you.  If I had time, I would have written a shorter column. 

SHORT IS GOOD

     I am a strong proponent… No, I need a more forceful adjective.  How about “obsessive”?  Yes, …an obsessive proponent, advocate, champion for short opinions.  Is anyone listening?  Not the United States Supreme Court and not many of my distinguished colleagues in our state courts.  We limit the number of pages in briefs that lawyers file in our courts.  Judges should adhere to a similar rule.

We know all the arguments favoring short opinions advanced by a host of commentators, which include Garner, Aldisert, Leflar, and Witkin, to name a few.  With me, it has become an…oh, yes, I already said, "obsession."  "Fixation" probably doesn't add much.  But you get the idea.  But why such an all-encompassing preoccupation?  Recently I experienced an epiphany in an environment far removed from the law.  That lawyers and judges were present had nothing to do with my insight.

         A few months ago musicians and singers, all of whom were in the legal profession, performed a "rock and roll" medley of songs from the 50's and 60's written by famed composer Richard Sherman.  The concert at Disney Hall featured the Los Angeles Lawyers Philharmonic conducted by Maestro Gary Greene, Esq.  The singers included Judge Curtis Kin, Linda Hurevitz, and Ken Freundlich.  The musicians were Bill Ryan on guitar, Eric Schaefer on bass, Jerry Levine on drums, and yours truly on keyboards (a misnomer)‑‑it was only one keyboard, electric (ugh), not a real piano, or, as they call it in the profession, an "acoustic" piano.

Rock and Roll from any era is not my genre.  But playing in this concert was a treat, because it was in honor of the personable and warm-hearted composer Richard Sherman, winner of two Academy Awards, The National Medal of Arts, and numerous other awards.  Richard was present and told me how much he enjoyed the concert. 

The tunes we played included "Pineapple Princess" and "You're Sixteen."  (Don't I wish).  But one tune in particular upset me, "Tall Paul."  The lyrics make a big deal about stupid Paul just because he's tall.  Of course it bothered me because I’m short, not the most impressive attribute to have in high school…when you are sixteen. 

And with advancing age, I'm getting shorter.  I have been called the "incredible shrinking judge."  I have nightmares about the movie "The Fly."  In the final scene of the early 1958 film classic, the hero who has turned into a fly is nearly invisible caught in a spider's web.  I still identify with this creature crying out in his small, high-pitched voice, "Help me, help me." 

So it is possible that my bias in favor of short opinions stems from my height… or lack of it.  Yet that should not detract from my argument that generally shorter opinions more clearly explicate the law than longer ones.  Only, like the plight of the fly, no one appears to hear my cry for shorter opinions, despite the universal acknowledgement that "less is more."  I would amend the maxim of jurisprudence enshrined in Civil Code section 3537 so that it would read: "Superfluity does vitiate."

Some of our nation's great jurists wrote short opinions.  I have often remarked about Justice Cardozo and his famous Palsgraf opinion.  Twenty-seven years ago I wrote in the Daily Journal:

"I don’t think writing comes easy.  It requires effort and commitment to write something of quality.  A good finished product comes from several drafts, whether it be an article, a hate letter or a shopping list.  It’s even harder to write an opinion that is lucid and concise.  Take for example the famous opinion in Palsgraf v. Long Island Railroad Co., 248 N.Y. 339 (1928).  It is a paradigm of simplicity and clarity.  Here is the statement of facts:

“‘Plaintiff was standing on a platform of defendant’s railroad after buying a ticket to go to Rockaway beach.  A train stopped at the station, bound for another place.  Two men ran forward to catch it.  One of the men reached the platform of the car without mishap, though the train was already moving.  The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall.  A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind.  In this act, the package was dislodged, and fell upon the rails.  It was a package of small size, about fifteen inches long, and was covered by a newspaper.  In fact, it contained fireworks, but there was nothing in its appearance to give notice of its contents.  The fireworks when they fell exploded.  The shock of the explosion threw down some scales at the other end of the platform many feet away.  The scales struck the plaintiff, causing injuries for which she sues.’”

Cardozo pointed out that an over-emphasis on details obscures meaning, and the Palsgraf opinion makes the point with just the right amount of detail.  Yet, even the writing in Palsgraf has been criticized.  I read recently that one critic complained that there was no need to mention two men running for the train.  His point, who cares about the guy who made it to the platform of the moving train without mishap?  He has nothing to do with the case.  The person of interest is the one who was unsteady, requiring the guards' help, which caused him to drop the small package of fireworks.  

Not sure I agree with that assessment.  With an economy of words, Cardozo vividly describes the entire scene.  Two men are running for the train.  The less agile, and probably the taller one, needed help.  In my opinion the scene lacks impact without reference to the shorter, more nimble, of the two men running for the train.  The words paint a picture the reader can visualize. 

Yes, these facts, so clear and concise, are nevertheless puzzling.  How, under these circumstances, could a small package of fireworks explode?  And how could such an "explosion" be of such force to cause scales at the other end of the platform to fall on poor Ms. Palsgraf?  Don’t you have to light fireworks?  Maybe a spark emanated from the engine, or maybe fireworks in the 1920’s were different than the firecrackers I lit as a kid.  Don't spread that last comment around please. 

I can hardly bring myself to say this, but could it be that the Palsgraf opinion is too short?  But then again is it necessary to know how the fireworks exploded?  I mean they did, right?  I have to think about this some more.  Oh gosh, this column is getting too long.  Better stop.  I’ll get back to you.  If I had time, I would have written a shorter column.