Wednesday, July 05, 2017


     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Example in point‑‑the unpublished opinion of Lester Knispel, as Trustee, etc., Plaintiffs and Respondents, v. Michael Scott Shore, Defendant and Appellant (June 9, 2017, B270450, Los Angeles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.

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