In
last month’s column FACTS ARE, I posited that the plural noun “facts,” or for
that matter “fact” in the singular, must not be preceded by the adjective
“true” or “false.” Those adjectives are
either redundant as in the case of “true facts”
or contradictory as in the case of “false facts.”
But depending upon a writer’s skill and
judgment, appropriate adjectives may precede “facts.” A few come to mind: “astonishing,” “shocking,” “breathtaking,”
“remarkable,” and “grotesque.”
And when not sure how much credence to
place in unrefuted or unsettled facts, which by their very nature may seem
questionable, certain adjectives that come close to “false” may be appropriate.
“Questionable, “problematic,” “dubious,”
“doubtful,” and even “incredible” come to mind.
Lawyers, judges and juries deal with
this dilemma all the time. They must
decide what are the facts. And once
those facts are established, they are the facts, unless some judge or
appellate court finds them “unbelievable” and decides to do something about
it. But what do they know?
Now let’s move on to illustrate facts
dressed up with falsities to color or mischaracterize the context or the
setting in which the irrefutable facts occur.
Example in point‑‑the unpublished
opinion of Lester Knispel, as Trustee, etc., Plaintiffs and Respondents, v.
Michael Scott Shore, Defendant and Appellant (June 9, 2017, B270450, Los
Angeles County). The problem does not
occur in appellant’s apparently accurate presentation of the facts to the
appellate court. To quote from the
opinion:
“Appellant Michael Scott Shore seeks
to set aside a judgment confirming an arbitration award issued by Judge Aviva
K. Bobb (Ret.) on the ground that Judge Bobb failed to disclose she and
Respondents’ attorney, Marc L. Sallus, were members of the Los Angeles Lawyers
Philharmonic Group together. We affirm
the judgment. [In a footnote the court
stated that the dispute decided in the arbitration was irrelevant to the issue
on appeal.] [¶] …
“On October 1, 2014, Appellant filed
his opposition, contending the arbitrator failed to make timely disclosures to
him about having previously served as an arbitrator or mediator with Sallus’
law firm on over forty occasions in the past three years. Further, Appellant argued Judge Bobb failed
to disclose at any time the fact that she and Sallus had both been members of
the Lawyers Philharmonic, for which they ‘have been practicing and performing
together … since at least November 2010.’
According to Appellant, he would not have selected Judge Bobb and would
have objected to her appointment if he or his counsel had known of this purportedly close personal
contact. He only discovered this fact
from ‘a friend’ in September 2014, after the arbitration award had been issued.
“Respondents presented Sallus’
declaration in support of their petition, which stated he played trombone and
baritone (a smaller version of a tuba) in the Lawyers Philharmonic. The Lawyers Philharmonic is comprised of
approximately 150 to 175 musicians who are lawyers, judges, justices,
paralegals and others involved in the practice of law and it performs three or
four times a year. Judge Bobb also
submitted a declaration which explained her role in the group; she played the
violin, but she had not been a part of the group for about a year. Both Sallus and Judge Bobb affirmed that
‘string’ players had little contact with ‘brass’ players and there was no
opportunity during rehearsal or performance for them to communicate. The only interaction either of them had with
one another while they were members of the Philharmonic was if they ran into
each other, they would exchange basic pleasantries.
“The trial court granted the petition
to confirm the arbitration award. In
connection with its ruling, it found, in pertinent part, ‘that Judge Bobb (a
violin player) and Mr. Sallus (who plays the trombone) both played in the Los
Angeles Lawyers Philharmonic. The Court
further finds there is zero evidence of any personal relationship between Judge
Bobb and Mr. Sallus, and consequently, there was no need to disclose
participation in the Philharmonic. The
Court specifically finds the Declarations of Marc L. Sallus and the Hon. Aviva
K. Bobb, Ret. to be persuasive. Both
Declarations establish that the contact between Mr. Sallus and Judge Bobb was
minimal at most, and that they did not interact with each other at all, other
than to exchange pleasantries every once in awhile.’”
Pardon the parenthetical aside, but
if musicians were hearing the case, they might have taken judicial notice that
it is rare for string and brass players to fraternize. Why would they? Well, to be fair, I suppose trombone players
and viola players are likely to hang out together. Note, I said viola players, not first string
violinists.
I draw this inference, because
trombonists and violists are the butt of cruel, ill-founded jokes. For example: What do you call a guy who knows how to play a
trombone and doesn’t? A gentleman. What is the best kind of trombone? A broken
one. Why is a dead snake in the road more tragic than a dead trombonist in the
road? There are skid marks in front of
the snake.
I could go on, but common decency
prevents me. So I will turn to a few
disparaging viola jokes. How do you keep
your violin from being stolen? Put it in
a viola case. What is the difference between
a viola and a trampoline? You take your
shoes off to jump on a trampoline. What
is the difference between a viola and an onion?
No one cries when you cut up a viola.
And, finally, how do you get two violists to play in tune with each
other? Ask one to leave.
But let us get back to our theme of
adding falsity to established facts. I
learned that at oral argument appellate counsel made an appalling
misrepresentation to the court. When I
was told about the enormity of the falsehood, I couldn’t believe it, despite
the high credibility of my confidential sources. I therefore was able to obtain a recording of
the oral argument and heard it with my own disbelieving ears. Appellant’s counsel represented to the court
that the Los Angeles Lawyers Philharmonic was a punk rock band. Even the court was incredulous. Presiding Justice Bigelow did point out, as I
recall, that the Los Angeles Lawyers Philharmonic is a symphony orchestra. The unflappable conductor of the orchestra
Gary Greene thought the characterization was amusing. I can’t say the same for Beethoven, Sibelius,
Elgar, and Tchaikovsky.
I end with full disclosures.
Disclosure #1. I am a judge and I have reviewed facts that
have strained my credulity but, as far as I can remember, never have I reversed
a case on that ground.
Disclosure #2. I know Marc Sallus. He and I also are members of the Big Band of
Barristers in which he plays trombone and baritone. The latter instrument I would characterize as
a tuba with a vitamin deficiency. We
often speak to one another. That is because the piano is not a string
instrument in the same sense as a violin or a viola. I consider Sallus a friend. But after the trombone jokes, that may be an
unwarranted assumption.
