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
Maybe?
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.
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