Wednesday, December 28, 2016

Peace of Mind

December.  Wish I could title this column Peace on Earth. But this prosaic, yet laudable, aspiration seems more elusive than ever.  Instead, I will take a stab at another deserving bromide, peace of mind.  Perhaps by the end of this column, I will have opened a pathway to inner tranquility.
I hearken on the theme I have harped on over the years‑‑ uncertainty.  There, before the helpless, hollow-minded lawyer, “falls the shadow” of uncertainty.  It is a heavy-handed, harrowing, horrific, hateful, hurtful, hellish harassment.  It hastens the hapless lawyer to hesitate, then harpoon, hinder and harm all hope for help.  Sorry, I got a little carried away with the H’s.  I don’t mean T.S.  I simply wish to stress that a harangue is not helpful.
I acknowledge that uncertainty is omnipresent, but more apparent in December as we contemplate what’s in store in the coming year.  And after our extraordinary presidential election, it predominates.  Because judges must refrain from political involvement, I do not speculate about the pursuit of civil rights cases by the new United States Attorney General.  Nor do I pose annoying questions like who will be the next United States Supreme Court justice or how she or he will vote on controversial cases.  That would be a futile endeavor. 
Lawyers and judges know that fretting about future outcomes is unproductive.  The best we can do is make seemingly rational predictions that are more likely educated guesses about how judges or juries will decide particular cases.  The decisions of so-called swing voting justices on our higher courts often leave us bewildered. 
          A recognition that what appears on the surface is seldom reflective of reality allows us to better cope with the world as it is as opposed to what we pretend or hope it to be.  We do better when we take what appears on the exterior with a grain of salt.    Judicial elections come to mind.  
          Some lawyers aspiring to garner votes for an open seat on the superior court hope to prevail through their personal ballot description.  But I hope most of us know that descriptive phrases in front of the word "prosecutor," such as:  "serial murder," "sex perversion," necrophilia," "repeat parking meter offender," do not guarantee the candidate will be a good judge.  In this age of public confessions, some voters could believe these phrases describe the prosecutor rather than the crimes the prosecutor prosecutes.  Maybe a "gang prosecutor" belongs to a gang.  Descriptions and stories are subject to interpretation.
Of course, we lawyers and judges are writers and storytellers.  And this means our tools are our words… and I suppose our brains from which the words come.  My friend, writer Charles Embree, reminded me what the 20th century philosopher Ludwig Wittgenstein said about words.  “Language is tautological.  A word can only be defined by other words.”
          At first I wasn’t so taken with Wittgenstein.  He was an impatient chap.  There was a time when he taught grammar school in small Austrian villages.  He was reputed to hit kids who got the wrong answers on math quizzes.  I thank my lucky stars that I wasn’t one of his students.  I would have been black and blue.  But because I don’t believe in astrology, even though I am a typical Capricorn, and Wittgenstein was smacking Austrian kids before I was born, the stars probably have nothing to do with it. 
          But Wittgenstein was one smart guy and I learned to respect him despite his knocking grammar school kids around.  Bertrand Russell described him as “the most perfect example I have ever known of genius as traditionally conceived; passionate, profound, intense and dominating.”  (Wittgenstein:  A Life:  Young Ludwig 1889-1921. Univ. of California Press, 1988.)  In fact, most of my columns are inspired by Wittgenstein, who said: “A serious and good philosophical work could be written consisting entirely of jokes.”  Bertrand Russell died 17 years before I published my first column.  He was good at mathematics.  He would not have liked my columns.
          Other disciplines acknowledge that what appears on the surface is misleading.  Last month I wrote about psychoanalyst Dr. Joye Barth who posited that patients may unwittingly create fictions in reliving their pasts.
          Attorney, lecturer, and author Rafael Chodos has written a book I commend to you.  It is titled “Why on Earth Does God Want to Paint?  Centripetal Art.”  (Giotto Multimedia 2009.)  I cannot do justice to this provocative and challenging exposition on the work of Chodos’ wife, the renowned artist Junko Chodos, in a paragraph or even in an essay.  Junko's writings and paintings take us beneath the surface where she exposes the innards of plants, bodies and engines.  They have the power to shock us into a recognition of what lies beneath the surface and to illuminate awareness about the center of our very being, hence, the word "centripetal."  Junko’s revelations changed Chodos' life and enabled him to achieve a deeper insight about himself and his mission as a lawyer and writer.
          I don’t suggest that exploring the depths of Junko Chodos’ art or pondering Wittgenstein’s semantic and philosophical conundrums will answer whether an equitable indemnity cause of action is viable.  But exploring questions posed by other disciplines makes for a better lawyer or judge.  To recognize the limits and the possibilities inherent in our profession makes us better at what we do. 
          Uncertainty need not be unnerving.  We gain composure and grounding when we embrace the tenets and professional responsibilities of our profession.  Years ago I was a panelist on a program concerning civility where all the participants received a handout that you will find invaluable.  It is called:

Observed by the Senior Advisory Board of the
1998 Ninth Circuit Judicial Conference

1.       Give your word, and then keep it.

2.       Accept responsibility, and then perform.

3.       Pay attention to detail, but keep the whole picture in mind.

4.       Remember that exploiting short term advantage often brings lasting bad consequences.

5.       Of course be truthful, but also take the trouble to be accurate.  Being candid requires both courage and tact.

6.       Understand that courtesy and graciousness are usually repaid in kind.

7.       Remember that your integrity is your greatest, and most precious, asset.

8.       Be an attentive listener.

9.       Avoid criticism that is either needless or nonconstructive or both.

          To practice these simple principles is to calm the disquieting effect of uncertainty.

          Let’s go back to Charles Embree and end with lines from a poem he wrote, “The Sub-Atomic Life Is Not Worth Living.”  (Not to worry about the title.)  He opened with his version of a verse from a popular song written and performed by Louis Jordan and his Tympany Five in 1944, "Is You Is or Is You Ain’t My Baby."  Charles wrote:

Is there is or is there ain’t a
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.

And I take my final leave this year wishing you Happy Holidays and Happy New Year… with an abundance of Peace of Mind.  

Boxer Dogs, Boxer Rebellion, and This…

          When one, O.K. me, has written a column for 28 years, readers come to know you, or wish they didn’t.  From month to month you make and lose friends and enemies.  You appreciate the praise, and bear the criticism.  It is what judges experience and, as they say, comes with the territory.  After almost three decades, I seldom worry about whether or not a topic “will play.”  I simply write about the insights I gain through my experiences, quotidian, or otherwise.  These often involve personal anecdotes.  One reader sent me an email thanking me for offering him “insight into the mind of appellate court judges.”  Fearing that my colleagues throughout the state would seek a restraining order to prevent future columns, I wrote him to explain that there is no generic appellate mind.  We all do our best to decide cases in accordance with the law and the standards of review.  Incidents or ordeals in my life may affect how I, not other judges, view the law. 
The preceding paragraph was an explanation or, if you will, a warning that the remainder of this column is about an intensely personal matter… my undershorts.  So last Monday morning, I followed my normal routine‑‑crawled out of bed at 6:30 a.m., tended to the usual morning matters, then grabbed my gym bag, packed with what I thought were all the usual accoutrements, and hurried to the gym for a robust workout.  Half-undressed and standing at my locker, I discovered I left my gym shorts at home.  All I had were my boxer shorts, the ones with the bright red and blue squares, the ones that prompted my buddies in the locker room to torment me.  Bummer!  What to do?  Could I get away with wearing my boxer shorts?  I went for it and glad I did.  I learned something, proving what Marcus Aurelius once told me over a beer at the Forum Bar, “Life is what our thoughts make of it.” 
For starters, no one seemed to notice my shorts.  But because of my predicament, I was checking out everyone else’s shorts.  And I realized after so many years at the gym, this was the first time I had ever thought about, let alone noticed, anyone’s shorts.  I felt self-conscious glancing at other people’s shorts.  It was apparent that no one other than I was looking at anyone else’s shorts.  I am not sure this has anything to do with etiquette or the concern that a below-the-belt observation could result in an arrest.  If on another day someone in my line of vision had committed a crime in the gym while I was doing pushups, and I was called as a witness to identify the person by the type of shorts the culprit was wearing, I would be demolished on cross-examination.  Let’s not even try to envision what that crime might be.  By the way, deciphering the paragraphs of script tattooed on the backs of various gym members, a topic we have explored in past columns, has not resulted in criminal prosecutions.
          This awkward experience got me thinking about the reliability of testimony.  And this in turn took me back to my college philosophy classes.  For this I have to thank my pal Marcus.  The beer was worth it.  Do the facts that witnesses perceive exist independently from their perceptions?  What do witnesses really see?  To what extent do their past experiences, concerns and wishes influence how they perceive the facts?  They might imagine what they saw.  Do facts exist apart from our perception of those facts?  Sort of like the tree-falling-in-the-forest question.
          I consulted my friend, eminent psychoanalyst, Joye Weisel-Barth.  In her lectures and published papers, Dr. Barth posits that in the story of a patient’s or any person’s past, the imagination plays a role, writing a new story, growing out of one’s desires and ambitions.  Of course the intimate relationship between an analyst and a patient over a long period of time is far different than that of an attorney and client, but there is one similar characteristic.  The relationship involves a story about the past.  Barth explains that “the analyst and the patient use their imaginations to filter experience, memories … and specific explicit and enacted moments of experience.”
          Similarly, I would argue that imagination plays a role in the stories that are engendered though the relationships between lawyers, clients, witnesses and judges.  This should teach us not to be too smug or too certain in how we interpret and relate these stories.  An awareness of this phenomenon can bring us a step closer to achieving justice.
But is the recollection of all facts subject to such concern?  What about establishing whether or not a letter or contract exists, what some would call an irrefutable or irreducible fact.  If the letter or contract is produced and is genuine, one’s imagination may not be a factor.  Of course the interpretation of the words and terms of a letter or contract is a different matter.
Speaking of letters, I want to share some exciting news with you.  I recently received an email in letter form (exactly as I received it) from the “COPORATE HEAD OFFICE of Citizen’s Bank of Canada,” informing me that “Twelve Million Six Hundred Thousand United States Dollars has been approved and deposited few days ago with our BANK” in my name by the “foreign debts settlement/compensation committee of European Union and the Executive members of the World Bank, and they instructed us to credit this fund direct to your private bank account with immediate effect.”
          Pardon the grammatical errors in the email.  No doubt “they” were excited about my good fortune.  And that’s not all.  The email goes on to inform me, “Meanwhile, the good news about your fund now is that your compensation payment file with some of the legal documents backing this fund has been forwarded to the Canadian Ministry of Finance and the United Nations for final approval.”  Yes, I know this news is too good to be true, but the email says when they “hear” from me, they will proceed with the transfer because “we were mandated to transfer this fund to you as one of the beneficiary whom the name is listed in the World Bank foreign debts settlement/compensation payment file.”        Wow!  And all I have to do is forward them personal information including “Any of Your Identity Card.”

          I told my friend Marcus Aurelius about my good fortune.  He brought up the subject of my shorts.