FAKE

     I was at a dinner party at a friend's palatial mansion.  There on the wall of the living room was Van Gogh's “Vase with Fifteen Sunflowers.”  I said to him, "You must have paid a fortune to the Van Gogh museum in Amsterdam."  He replied with the nonchalance of the well-to-do, "It's a fake.  So is the Picasso in the den.  They cost plenty."  His casual response brought home that today fake is de rigueur. 

          That was not the case when I was a kid.  Fake fur coats were derided as cheap imitations for the unsophisticated of lesser means.  I recall a friend of my parents wearing around her neck a wrap of some poor, furry little creature with his stuffed head and outreached claws hanging over her right shoulder.  Such a haunting image can stay with a person for the rest of his or her life.  Some critics suggest it has influenced my judicial decisions.

          That reminds me of something even creepier.  When I was around five or so, my parents took me to visit their friend, an elderly lady, whose dog, Cookie, a Pomeranian, had died.  She enlisted the services of a talented taxidermist to have the dog preserved.  She brought the dog out of the closet for me to play with.  This too may have influenced my judicial decisions.

          Years later at a lecture on emotional distress by Professor Prosser in my torts class, it dawned on me why the dog never retrieved the balls I threw for him.  This encounter with a fake live dog was traumatic.  It has been therapeutic to write about the experience.  See past columns "Death Becomes You," May 2008, and "Pardon the Interruption," October 2014.  (Note‑Twenty-nine years of columns is bound to result in some recycling, whatever the reason.)

          But getting back to fake furs.  In the "old" days, not all fake was bad.  No one, well almost no one, thought Houdini actually disappeared into the ether from the water tank in which he was submerged head first, tied up in chains, only to materialize minutes later stage right, dripping wet.

          But today, what is fake is accepted and even respected in some quarters.  Fake furs are worn and acknowledged by many people no matter their economic or social status.  In many quarters killing endangered animals to make a frock is unacceptable.  And of course fake diamonds (to be genteel, let's call them synthetic diamonds) are worn by people of all strata.  Better to wear a cubic zirconia to a fancy ball and leave the diamond in the safe deposit box.  No one, well hardly no one, knows the difference and no one really cares. And today violins can be manufactured to nearly duplicate the sound of a Stradivarius.   Violin virtuosi cannot tell the difference. 

          And in bygone days we tried to maintain a healthy skepticism about what we read in the newspaper, but we never conceived of "altfacts."  As I pointed out in previous columns, "altfacts" is a paradox, an oxymoron.

          What is alarming is that the current "fake" phenomenon has the potential to permeate the judiciary.  I know of appellate justices who have had their opinions collected in impressive hardbound volumes.  These imposing books are prominently displayed in law firms and offices of arbitration providers where retired justices work.  They allegedly enhance business.

          But what if many of these bound opinions are mediocre or have been reversed with critical broadsides from the Supreme Court?  To the sophisticated reader, this business-getting device could backfire.  I fear that some enterprising entrepreneur will print "altopinions."  Surely no justice would participate in such a sham.  I doubt I would.  Nor would I worry too much about a slippery slope.  But… what if there were some sentences or paragraphs that could use a little editing for clarity?  Mind you, such tinkering would not change the result to a reasonably perceptive reader.  Or what if the Supreme Court just got it wrong or even got it right in its stinging reversal of the justice's opinion?  Would it not be permissible to set things right in an altopinion?  I'm just asking.  If someone other than the justice involved wrote an altopinion, that would be akin to forged art. 

          Enough about appellate justices.  I am concerned about trial judges who often suffer from incomplete truths that lead to untrue conclusions.  This occurs when only a portion of the facts are known or reported.  Back in the 60’s and early 70’s, Baxter Ward was a newscaster.  He served on the Los Angeles Board of Supervisors from 1972 to 1980.  When I was a young lawyer, I recall a so-called news story Ward reported concerning the Los Angeles Superior Court. 

          One afternoon, Ward walked down the corridors of the Mosk Courthouse, which was then called the Los Angeles County Courthouse.  He noted how few courts were in session and castigated the judges by name for playing hooky.  Of course his viewers did not know that the judges whose courtrooms were empty were in chambers settling cases or reviewing the next day's complicated law and motion calendar. 

          Today we have a solution for this kind of misleading reporting that creates a false impression.  I read recently in the New York Times about a company that has offered its employees the option of having a chip inserted under the skin to monitor their work and ensure they are keeping their hours.  This gives employees indisputable proof they are working a full day.  Not sure, however, if the chip is able to determine what the employees are doing while at work. 

What a wonderful idea for trial judges.  Judges, please bear with me.  Don't stop reading.  It's not a big deal.  The chip is only the size of a grain of rice and is inserted between your thumb and index finger.  It is not a tracking device.  You merely swipe your finger under a device to prove you are at work.  Just think, this tiny device would have revealed all the missing facts to defeat Baxter Ward's erroneous conclusion. 

You ask why not insert chips in the fingers of Court of Appeal justices?  That would be absurd.  First of all, appellate justices appear in a courtroom for oral argument only once or twice a month.  Other than that, the justices are usually out of sight, meticulously drafting and editing opinions.  Second, does anyone in the media or public really know or care about the Court of Appeal?  Unlike trial judges, appellate justices' names are rarely mentioned in the news.  I'm just trying to help.  And that's a fact.