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.