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:
"PRINCIPLES OF PRACTICE"
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
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.