Who’s in Charge?

My cats supervise my columns while I write them. Quite annoying. Wardell, named after the great tenor sax player Wardell Gray, is…gray. And Wardell has an abundance of feline grey matter. He knows how to open drawers and pull everything out, how to run down the hall with my slippers, a feat usually reserved for dogs, and how to run into the shower when I take one and mostly avoid getting wet. Sorry, I got carried away. This column is not about my cats. I just mention Wardell, not his sister Natalie, because Wardell has assumed the role of supervisor while I type this column. Knowing Wardell, he is likely to step on some keys that may cause confusion or dismay in some readers. If so, blame it on Wardell. Let’s segue into our main topic with a cliché about time; take it from me, “it flies.” I have been around long enough to know about its deceitful behavior. In one’s later years it can appear to move at the speed of light. At other times, it leads you to believe it moves at the pace of the slowest moving animal known to humankind, the three-toed sloth. In one of my past columns, I wrote about having my foot in the way of the redoubtable Presiding Justice Mildred Lilly as she was making her way to the lectern to speak to the Commission on Judicial Appointments. Her leg hit my foot. As I watched her begin to stumble, time stopped. So did my heart. During that eternity, that lasted nanoseconds, I made a bargain with a higher power not to let her fall. She didn’t. Whew! Faust made a better deal. But we can all acknowledge that time does not stand still. When I was a kid, I knew time marched on from going to the movies with my parents. Before the feature we saw a summary of the news called Time Marches On. There it was, filling the screen in bold block letters, tilted at about a 20 degree angle. I had no doubt that time did not stand still because the authoritative voice of the announcer reinforced the concept. In a stentorian voice he said, “Time Marches On.” He then narrated as we saw glimpses of battles in Europe and the Pacific during WWII, and then for a change of pace concluded with a few lighter moments, a chimpanzee doing somersaults. The announcer convinced me that time marched on but did not clarify the pace of the march. Was this a fast John Philip Souza march or the march of a funeral dirge? Time marched, more like dragged along, during grammar school as I waited for summer vacation. It moved at the pace of a slug during my tax course in law school. Yes, in the beginning, time marches slowly, but, believe me, it picks up momentum and flies, reaching warp speed from the perspective of later decades. Clichés, though trite, are indisputably true. Have you ever seen a rolling stone gather moss? It seems like yesterday (speaking of trite, sorry) when I was a law student. Note: I still am. And so are all my colleagues. In those days, the professors ruled. They questioned us, and, yes, we questioned them and debated with them, but we showed up on time for class. Yes, we grumbled now and then, but the professors set the agenda. We could suggest change but did not dictate change. Nowadays it seems the roles have become blurred and, in some instances, reversed. I admit when Dean Prosser paced back and forth before us in that semicircular tiered classroom, thousands of tiny legs of terror scurried to and fro in the limbic portion of my brain carrying a teeny but powerful loudspeaker that screamed “Please, Please, Do Not Call on Me!” But it seems different today. I have spoken to law professors and law school students individually and in their classes and what I sense is worrisome. And what I have heard from a professor or two is in so many words, “I sure hope I don’t piss off the students.” On a few occasions I participated in a law school class at a prominent university to act, no, I mean be, the judge in a practice session for a moot court competition taught by a professor friend of mine. Most of the students who participated in the practice session were prepared, eager to learn and responsive. But on every occasion when I participated in the practice sessions, a few students sauntered in late, and displayed resentment if pressed when their responses to questions were not responsive or simply wrong. They were sullen and churlish during the discussion after the moot court session. I did not sense a lack of respect for the law professor among the few recalcitrant students. He was extremely bright, conscientious, well liked and admired by his students. Does my limited experience reflect a trend? I cannot say how pervasive this phenomenon is, but my discussion with a few law professors leads me to believe my experiences were not isolated incidents. My cynical conjecture about the present-day provenance of this phenomena in law school, in addition to changing notions about education in general, and changing societal mores, may be the prohibitive cost of a law school education. What law school wishes to anger students and lose enrollment when the fees their parents pay are in the thousands of dollars? But I am convinced there are other more pervasive causes of what I see as a troubling phenomenon, the students running the agenda. And it began a few decades ago. I wrote in one of my previous columns about students at New York University Law School refusing to participate in a moot court problem concerning a gay couple who wished to adopt a child. The students assigned to represent the social services agency refused to participate because they were opposed to the position of the agency. I argued that when the students become lawyers, they will be better equipped to represent the adopting couples by practicing in moot court to take the opposite position. After a standoff, the law school shamefully gave in and let the morally righteous students off the hook. Not so sure how successful those students will be if they represent gay couples in real life. Social critic Nat Hentoff agreed with me and quoted my column in his book Free Speech for Me – But Not for Thee (1992, HarperCollins). I certainly agree that students should have a say in their education and their suggestions for improvement and change should seriously be considered, but someone has to run the institution. Generally, but not always, those with experience have the last word. There are moves to lower the standards for professional school admissions. Some have argued that this is necessary to admit more people of diversity into the professions. How insulting this is to all people. Some of our best judges, lawyers, doctors, and other professions are people of diversity. Linguist John McWhorter is a controversial figure. His ideas provoke a thoughtful discussion about standards of behavior and education. He argues that everyone can and should meet high standards. That is what we expect from a brain surgeon operating on us or a lawyer representing us in a complicated lawsuit. Some might argue this is discriminatory. Oh, oh, there goes Wardell. He is heading for his box.

My Warranty is Up

Let’s begin with a startling revelation – Judges decide cases. When deciding a case on appeal, appellate justices are required to write an “opinion,” which is simply a written reason (a reason in writing) for the justice’s decision. I do not have to be reminded that “writing” for most judges these days can mean typing, dictating, and often copying, in a more legitimate sense of the word, like paraphrasing. I have harped enough over the decades that the quest for certainty is the elusive goal pursued by living creatures with alleged reasoning power. The term “opinion” implies uncertainty. In pronouncing or drafting a judgment, a trial judge is telling the litigants, their counsel, and anyone else who is interested, “in my opinion” this is how the case should be and is decided. A case decided by the Court of Appeal signals that one or two other justices agree with the author’s opinion. That agreement may entail alterations in language and compromises. And when there is a dissent, a persuasive dissent, uncertainty is heightened. I will not venture to extend this discussion to our Supreme Court and certainly not to the United States Supreme Court, or what we now call SCOTUS. Do not mean to be disrespectful, but SCOTUS is a good name for a pet dog. “Here SCOTUS. Come SCOTUS. Be a good SCOTUS.” I cannot help myself, but lately I have been saying “Bad SCOTUS.” And with the cases set for argument this term, SCOTUS needs a strong leash. Nobody’s listening, but why doesn’t SCOTUS and other courts write shorter opinions? Like old soldiers, the spirit of Roger Traynor is fading. But getting back to uncertainty, please understand, the uncertainty I write about is not, in most cases, the same as puzzlement and mystification. We all try to keep that degree of uncertainty to a minimum. Language by its very nature is indeterminate, and different facts necessarily call for interpretation. Good lawyers are adept in interpreting language to fit the facts of their case. This is not a criticism; it is what they are hired and required to do. The cases are presented to the appellate court by way of the record and briefs, the latter often a misnomer. But whether protracted or concise, we read… must read them. And this reminds me of a column by Steve Lopez in the Los Angeles Times (Sept. 26, 2021). In the tight housing market, prospective buyers are bidding above the asking price and trying to curry favor by writing love letters to the sellers. For example, a hopeful buyer inspecting a house for sale notes a painting of dogs playing poker prominently displayed in the seller’s den. Ignoring the seller’s plebeian artistic taste, the buyer who desperately wants the house offers more than the asking price and reasons the seller likes dogs and sends the seller a letter or an email: “My family and I love the home and our Welsh Corgis love the backyard where they can chase the squirrels. Not to worry, they seldom catch them. We are teaching Sherman, the smarter one, to play gin rummy.” Now and then attorneys write briefs that attempt to curry favor with the court. For example, in my division we may receive a brief along these lines: “Your Honors, we are so pleased to be in Division 6, even though we will have to travel in heavy traffic for three hours to get there. We appreciate the tasteful décor of the courtroom and the uncomfortable wooden benches which will keep us alert. As this distinguished Honorable Court wrote in (citation of a case authored by a Division 6 justice that has nothing to do with the issue at hand), …. etc.” In these, and other cases where there is simply no issue to warrant even an opinion, I would prefer to follow the lead of the Danish artist Jens Haaning and not write one. You can read about Mr. Haaning in the Sunday New York Times (Oct. 3, 2021). A Danish museum commissioned him to paint two paintings displaying “cash, reflecting the nature of work in the modern world.” He collected his fee of $83,000 and delivered to the museum “two blank canvases without a scrap of currency in sight.” Unfortunately, there is an obstacle to my plan to avoid written opinions with meritless briefs. See California Constitution, article VI, section 14: “The Legislature shall provide for the prompt publication of such opinions of the Supreme Court and courts of appeal as the Supreme Court deems appropriate, and those opinions shall be available for publication by any person. Decisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated.” But I am optimistic that Supreme Court justices who read this column will take my advice and write shorter opinions. Have to bring this column to a close now. Just got a call that the warranty on my car is up and I must press 9 on my phone…. mmm, wasn’t my warranty up three years ago?

Real to Reel

Lawyers, judges, cardiac surgeons… well, just about everyone takes a vacation. Even columnists take a day off now and then. Over the past three and a half decades, I may have missed a column or two. Who knows? You expect me to remember that far back? This column is like taking a column day off because I wrote it a few months ago, but not as a column. Instead, it is an introduction to the new book “Real to Reel, Truth and Trickery in Courtroom Movies” (Vandeplas Publishing, May 2021) authored by the eminent Professors Michael Asimow, Dean’s Executive Professor of Law, Santa Clara Law School, and Professor of Law Emeritus, UCLA School of Law; and Paul Bergman, Professor of Law Emeritus, UCLA School of Law. Their previous book Reel Justice received rave reviews. I guarantee the raves will continue with Real to Reel justice. Here is the introduction: Some of my doctor friends refuse to watch medical dramas on television. A cardiac surgeon I know said he would like to take a scalpel to the scripts. “The gross misinformation on medical television shows gives the public a faulty view of the medical profession and makes my work far more difficult than it already is.” I suggested that most people watch these shows for entertainment, and many do not regard them as an accurate view of his profession. I asked if nervous patients wheeled into surgery ever asked a question that reflected the influence of a scene they had seen on a television show or a movie. His answer was, “You would be surprised.” His comment awakened a memory that had lain dormant in the far reaches of my memory. I recalled that many years ago our family had watched a television series, in black and white of course, Dr. Kildare, starring Richard Chamberlain. Chamberlain had trained with the Royal Shakespeare Company, not the Mayo Clinic. At the time, while Dr. Kildare was the show that everyone discussed at the water cooler, I was with my mother in line at a supermarket. Behind us was Dr. Kildare, I mean Richard Chamberlain. He was next to us, but we were not autograph hounds and left the famous actor. A couple approached him and asked for medical advice. Poor guy. You know the line, “I am not a doctor.” He still gave them an autograph, but did not take their pulse. I was determined not to be influenced by my friend’s uncharitable view of “medical dramas.” But I realized that I felt the same way about some of the movies and television dramas I had seen over the years dealing with the law. My decades spent as a lawyer and judge no doubt contributed to my yelling at the television screen when I saw lawyers interrupting one another before an insouciant judge. Decorum inhibited me from doing the same in a movie theater. I heard Justice Holmes whispering in my ear, “Don’t yell [bullshit] in a crowded theater.” Trials are conducive to portrayal in movies. A trial, by its nature, is theater. The courtroom is in fact a “set” one would find in a movie or on the stage. While it rankles me to characterize courtroom lawyers as “actors,” like actors, they utter lines, and do so in a certain order. The movie director has a more creative role than the judge in the courtroom, but both control the proceedings and decide what can and cannot be said. But what movies and theater compress into a few hours may happen over months, years, even centuries. Wordsworth remarked that “poetry is emotion recollected in tranquility.” But the poetry that is produced is designed to elicit and even magnify the emotion. Artful compression allows us to feel intensely the drama, the significant and emotional power that underlies the actual event. There is painstaking care in artful movie making that makes important points in highlighting the drama. Both real trials and those portrayed in movies take time and involve what some may view as drudgery. I prefer to view this kind of drudgery as “hard work.” This is the drudgery the lawyer and artist accepts and may even enjoy. Obviously, more time goes into a trial than what occurs in the courtroom. There are endless hours with the client, the research and the investigation. A good script may even bring the drama of research to the audience. Prior to the Internet we saw the lawyer or associate surrounded by open law books in the office law library late at night, Styrofoam cup half-filled with coffee on the large library conference table. His shirt is unbuttoned, his tie askew, or, more recently, her shoes are off, she is bleary-eyed at a computer screen and shouting, “Yes, I found the case that is the winner for us!” I was disabused of notions I had about the practice of law on film and in real life during my first day in law school. The formidable Dean Prosser walked back and forth before our first-year class assembled in the tiered amphitheater classroom and spoke these encouraging words: “Look to the left, look to the right, one of those persons will not be here at the end of the semester.” I looked to the left and looked to the right…and almost fainted. I was sitting on the aisle. It was later when I saw “The Paper Chase” that I realized underlying my terror at finals and the bar exam was real-life drama. After I passed the bar and became a Deputy City Attorney in Los Angeles, I tried criminal misdemeanor offenses. Some elderly folk, probably people my age now, came regularly to the court to watch the trials. We called them “court watchers.” One court watcher was John, a dignified gentleman who was a holdover tenant in one of the abandoned apartments about to be razed for condominiums near what became the site for Disney Hall several decades later. John and I became friends and I asked him whether he was bored watching endless drunk driving, petty theft and other misdemeanor cases. John told me he loved the “drama of the courtroom” no matter what the trial. He liked guessing how the jury would decide a case or how the judges would rule on motions. He even offered friendly critiques of my courtroom performance. Note the word “performance.” I received better advice from John than from some of the trial advocacy courses I attended. How fortunate we are to have Professors Bergman and Asimow again offering invaluable insights into the movies we love to watch and critique. Bergman and Asimow induce me to once again watch movies I have seen and can now appreciate with a more discerning eye. No longer will I complain when watching Henry Fonda in “12 Angry Men” stick a knife into the jury room table. That he is defacing government property is beside the point. To quote a phrase from the past, Bergman and Asimow remind us that “Movies Are Better Than Ever.”

What’s in a Title? Who cares?

When a writer grouses about poor writing as I do, when he lectures and writes about clear and concise writing, his life can be a misery. Just ask me. Readers of such self-appointed experts love to pick them apart when they (me) make mistakes. And such know-it-alls (me) deserve what they get. I have been guilty of dangling participles, unintentional neologisms, lack of parallel construction, malapropisms… it’s too painful to go on. Good writing like most endeavors is a struggle that demands constant attention and diligence. As an example, I originally wrote “a struggle that requires constant attention and diligence.” But “demands” was stronger and works better with “struggle.” This example conveys commitment. But if the writer is not on guard, redrafting can result in a smug pat on one’s back. In any event one must learn to accept and profit from criticism. If any of you know of any self-help books on this subject, please let me know. Years ago I wrote in a column “It’s me,” in response to the question, “Who is there?” A loyal reader expressed his shock that I did not write, “It is I.” Fowler’s Modern English Usage bailed me out. See A Dictionary of Modern English Usage (2nd Edition, Oxford University Press, 1983) at page 355: “The use of me in colloquialisms such as It’s me, and “It wasn’t me” is perhaps the only successful attack made by me on I.” A writer of judicial opinions, articles, and columns must be able to handle criticism with equanimity, to be specific, with constructive criticism. Yes, it’s subjective, but when a reader takes me to task for a title, I need a sedative. In response to my last column “How to Drive James Joyce Nuts” (D.J. July 2021), I received more comments than usual. Most were favorable. What a relief. This may be pretentious, but I don’t count responses that ask, “Who’s James Joyce?” But one reader voiced a mild criticism, or, to make it sound better, an observation. To give the appearance of objectivity, let’s call it a critical observation. Or from another point of view, a damned nit-picking who-the-(expletive deleted)-gives-a-damn observation. He felt I did not adequately tie the title of the column to the column itself because I centered the discussion on Joyce’s “Ulysses.” I like to think the critique was as significant as a microscopic bit of space debris on the Hubble telescope. With my luck, some highly credentialed astronomer will have read this column and emailed me with a detailed explanation why it does make a difference. It may be a stretch, but I would argue that the title implied a whimsical way of getting back at Joyce for putting us through all that trouble reading “Finnegans Wake” or “Ulysses” in which he was showing off how knowledgeable he was… and we were not. That’s how I felt reading judicial opinions in law school. I had trouble reading some of, if not all of Felix Frankfurter’s opinions. Like Joyce, he certainly was an intellectual pachyderm, pachyderm in the sense of a large intellect. Pachyderms have thick hides, meaning insensitive to criticism. But I have read in zoological journals that elephants are sensitive animals. Was Frankfurter sensitive to criticism? Clarification, was Frankfurter like an elephant? Now, I and the reader or two that may have stuck it out this far may be wondering if “pachyderm” is the correct word to use for someone impervious to criticism. How do we describe Frankfurter’s sensitivity to criticism? Who knows? He is reputed to have heaped piles of (elephant imagery again comes into focus) criticism on his colleagues when they disagreed with him. Could Frankfurter handle what he dished out? Cole Porter’s song, “I’ve Got You Under My Skin,” comes to mind. I heard one version with the line, “I’ve got you under the hide of me.” This calls to mind another show tune, “Spring Can Really Hang You Up the Most,” lyrics by Fran Landesman. Like spring, language can really hang you up the most. But I must admit titles can be misleading, including my own. The title of an article “They are Terrifying Judges” is ambiguous. Are the judges terrifying the lawyers, or the lawyers terrifying the judges? These days it is hard to tell. Journalists may write a factually correct article, but an editor writes the headline that distorts what really happened. Let’s pursue this and related topics in next month’s column, or not. Depends upon whether or not I can come up with a good title. Arthur Gilbert is a presiding justice of the 2nd District Court of Appeal, Division Six. His previous columns are available on gilbertsubmits.blogspot.com.

How to Drive James Joyce Nuts

Just think if James Joyce were writing his magnum opus Finnegans Wake today on a computer, auto correct would drive him over the edge. I began reading Finnegans Wake 50 years ago. I am still working on the first paragraph. I am doing the same trying to figure out the recent changes in the sentencing law. An English literature professor friend of mine taught a course on James Joyce. He seemed normal, most of the time. For years he and a special group of friends from all walks of life met once a week to decipher, or should I say to try to decipher, sentence by sentence the meaning of Finnegans Wake. Not sure whether they got beyond the first page. My colleagues and I are doing the same with the recent legislation designed to reduce previous draconian sentencing rules. I might include in the mix many judicial opinions on the subject, including my own. But getting back to James Joyce, his novel Ulysses was a piece of cake in comparison. And that was tough going. Years ago I wrote about the courageous Judge John M. Woolsey who wrote the opinion finding Ulysses not to be obscene. (See United States v. One Book called “Ulysses” (S.D.N.Y. 1933) 5 F.Supp. 182.) Wonder what the fuddy-duddies of the 1930’s would say about today’s novels. Does anyone read the classics anymore? I mean the classics like Middlemarch, War and Peace, The Idiot (not my autobiography). I have argued that if one is willing to take the time to devote to works of literature, and other topics in the humanities, “they” (the new grammar drives me nuts) are more likely to be professionally successful. But is that true? As far as I can determine, Judge Woolsey did not major in English Literature. He is reported to have read Ulysses several times and written several drafts of his well-reasoned opinion, praised by literary critics. It proves a judge or lawyer, or anyone else for that matter, can be highly qualified in all aspects of (their) profession without studying literature. Perhaps the test is in the effort and commitment. To prove the point, here are just two paragraphs that Judge Woolsey wrote in his celebrated opinion: “Joyce has attempted — it seems to me, with astonishing success — to show how the screen of consciousness with its ever-shifting kaleidoscopic impressions carries, as it were on a plastic palimpsest, not only what is in the focus of each man's observation of the actual things about him, but also in a penumbral zone residua of past impressions, some recent and some drawn up by association from the domain of the subconscious. He shows how each of these impressions affects the life and behavior of the character which he is describing. “What he seeks to get is not unlike the result of a double or, if that is possible, a multiple exposure on a cinema film which would give a clear foreground with a background visible but somewhat blurred and out of focus in varying degrees.” Not bad for a guy who was not a lit major. I note a Joycean influence. Mmm, now I am wondering if he would have written such imaginative prose if he had been a lit major. But further research on Judge Woolsey led me to discover he had a half-sister, Gamel Woolsey, who was a well-known and talented poet, translator and novelist. And guess what? She wrote a racy novel One Way of Love that was almost published in 1931 but suppressed. And Judge Woolsey wrote his famous opinion that became the preface for Ulysses in 1933. Could it be that after reading the lascivious novel by his half-sister, Judge Woolsey was influenced by a faint prurient interest? Who am I to say? No one could predict how Judge Woolsey would rule. Certainty? Certainty is an unattainable ideal like Plato’s Forms. So don’t look to the legal profession for certainty. To prove the point, I take the liberty of quoting from one of my own opinions concerning the range in good-faith settlements. In North County Contractor’s Assn. v. Touchstone Ins. Services (1994) 27 Cal.App.4th 1085, 1090: “That ‘reasonable range’ is about as close to certainty as the elusive good faith settlement can come. A conscientious judge's search for certainty can sometimes end in disappointment because in some cases certainty is more a phantom than a reality. “As Oliver Wendell Holmes explained: ‘The language of judicial decision is mainly the language of logic. And the logical method and form flatter that longing for certainty and for repose which is in every human mind. But certainty generally is illusion, and repose is not the destiny of man. Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding.’ (Holmes, The Path of the Law (1897) 10 Harv.L.Rev. 457, 465-466.) “When confronted with motions for good faith settlements, judges should reflect on Holmes's insight, and not yearn for the unreal goal of mathematical certainty. Because the application of [California Code of Civil Procedure] section 877.6 requires an educated guess as to what may occur should the case go to trial, all that can be expected is an estimate, not a definitive conclusion. That estimate requires that the trial judge inquire into a number of relevant factors, which are: the amount offered in settlement in relation to plaintiff's potential recovery; the settlor's proportionate liability; the lack of wrongful conduct; insurance policy limits; the settlor's financial condition; and the allocation of settlement proceeds among the plaintiffs. [Citation.] A judge charting the boundaries of good faith of necessity must avoid a rigid application of the factors set forth in Tech-Bilt [(1985) 38 Cal.3d 488, 499]. The judge should make an educated guess whether the settlement approximates the settling defendant's apportionment of liability and is not grossly disproportionate to the settlor's fair share of anticipated damages. (See Abbott Ford, Inc. v. Superior Court [1987] 43 Cal.3d 858, 873-875.)” You see, there is the answer. Choices in life and the law are based on educated guesses. Does a broad-based education in the humanities lead to a more educated educated-guess? Ask Judge Woolsey.

Revelations III

I read a squib last week in the Sunday New York Times’ section “Of Interest.” Eleven years ago, then Chairman of Google, Eric Schmidt, is reputed to have told an interviewer that “young people would change their names upon reaching adulthood to escape their digital pasts.” Sometimes people would like a name change because of a malicious lie someone posted about them on the Internet. Or maybe because they themselves posted a dumb comment borne of adolescent hubris reinforced by their brain’s undeveloped limbic system. This got me thinking about judges searching for a name change or anonymity when taking a beating by a “higher” court. The trial judge didn’t do so well in United States v. Microsoft Corp. (D.C. Cir. 2001) 253 F.3d 34, section VI, in particular. How could a judge with a name like Penfield Jackson make such errors? In contrast, Judge Rodney Melville, who presided over the world-famous Michael Jackson case, does not need a name change. In People v. Jackson (2005) 128 Cal.App.4th 1009, we considered the propriety of sealing the transcript of the grand jury proceedings. At page 1017, “We conclude that Judge Rodney Melville carefully balanced the defendant's right to a fair trial and the public's right to know. He displayed sensitivity and insight into these issues, and he made rulings that gave him the flexibility to maintain that balance in an ever-changing environment.” Long after the case was over, Judge Melville told me why he was able to preside over the case with equanimity. “The case wasn’t about me.” Good insight for all judges whatever the case. But however we rule, anonymity is not an option. We signed up or, to be exact, accepted the appointment and, like all things, with the benefits … you know the rest. Chief Justice Roberts’ famous, but incomplete, explanation of what judges do, calling balls and strikes, is only part of the enterprise. The reason for the call is as important. When that chore is over, judges do their best to move on whether they are affirmed or reversed, just as lawyers move on whether they prevail or not (leave “win” or “lose” to the press). But the ineluctable possibility of a judge facing reversal does not apply to those on the United States Supreme Court. Eschew SCOTUS, good name for a pet. A subsequent SCOTUS (here we reluctantly use the detestable abbreviation to avoid repeating the Supreme Court of the United States) may remake or scuttle an earlier decision. Time marches on, or backwards, depending upon your point of view. And our California Supreme Court has faced “reversal” from SCOTUS on rare occasions. See Nollan v. California Coastal Com. (1987) 483 U.S. 825. Wonder why I chose that case? There are other pressures in that final appellate station. Recommend we avoid descriptive clichés like “rarefied,” or “ivory tower.” Ivory does not and never did belong on piano keys. Will not elaborate for fear a creative ground for recusal may be advanced in some future case. Despite the rare exceptions, not just SCOTUS, but our own SCOC, or SCOCAL, if you prefer, is generally the final station for the holding that resolves the issues. But not always. Different facts, different situations often call for different applications. And different times, different justices can change everything. Example, see Burlage v. Superior Court (2009) 178 Cal. App.4th 524. Then ten years later, see Heimlick v. Shivji (2019) 7 Cal.5th 350 (at p. 370). How fickle these judges can be. And needless to say, judges, like lawyers and their clients, are subject to the vagaries of the law when they are litigants. They should never represent themselves. All capable and many incapable practitioners know this. Seasoned trial lawyers if caught off guard will admit that courtroom bravado is often a cover, as they try to calm down the butterflies beating their wings beneath the surface. This is not to say the law is a crap shoot. Reasonable predictions about outcomes are legitimate and necessary. When clients ask their counsel, “Can they do that?” The response, “It all depends,” is honest and forces confrontation with the unknown. I know, because I was a client in the celebrated case of Gilbert v. Chang (2014) 227 Cal.App.4th 537. I knew enough not to represent myself. I was represented by my close friend and colleague, then-attorney extraordinaire, and now redoubtable administrative presiding justice of the 2nd District Court of Appeal, Elwood Lui. Will save for a subsequent “Revelations” column the rigors of trial preparation to fully analyze and argue the meaning, if any, of a troublesome statute. I prefer not to characterize the client, me, in similar fashion. The point is that we were asking ourselves what “they,” the trial and appellate judges hearing our case, would do. And I was and Lui had been “they.” For those readers too lazy to look up the case, we won, I mean, prevailed. And now a farewell to Cruz Reynoso. To describe this one remarkable individual is akin to describing a composite of several uniquely exceptional people. Among his many accomplishments, he was the first Latino justice on the California Supreme Court, associate justice on the Court of Appeal, director of the California Rural Legal Assistance (CRLA), distinguished law professor, member of the U.S. Commission on Civil Rights, and awarded the Presidential Medal of Freedom. Equally remarkable is that Cruz Reynoso, a person of such accomplishments, leading the way to change for a better world, was so gentle, unassuming, and kind. From my brief acquaintance with him, I knew he preferred to be called Cruz. You can witness the moving tribute to Cruz by our Supreme Court that took place on June 2 on the court’s website and it will be published in the Official Reports. Our Chief Justice, with her characteristic warmth, presided over this tribute. Justice Cuéllar’s eloquent comments will have you in tears. Luis Céspedes, Gov. Newsome’s judicial appointments secretary, delivered a stirring tribute from the governor, and related a few stories about his dear friend Cruz. When Cruz was living in New Mexico and received a call from Gov. Brown informing him of his appointment to the 3rd District Court of Appeal, Cruz fretted. Moving to California was one thing, but, not to disappoint the children, the animals had to come as well. The goats, rabbits, horses and a donkey all arrived in California. I hear they preferred the climate. Cruz put his foot down when they wanted to attend his swearing in. Comments from Justice Joseph Grodin; Dean Kevin Johnson, UC Davis School of Law; Cruz’s son, attorney Len ReidReynoso; and the Chief Justice gave us an insightful portrait of a person you would feel fortunate to know. So even though we say goodbye Cruz, you are still with us.

Revelations II

The intriguing title of my February column “Revelations” was an intimate look (not exposé) on how appellate opinions are “processed” in my division. Please excuse the word “processed.” It sounds like a factory assembly line production of foods for humans or pets. Well, the cases do keep coming and they must be… decided, a characterization I prefer to “processed.” And each decision is a written opinion, a reason for a result. Everyone knows that, right? And the cases keep coming… sorry, I already said that. And some take longer to package, I mean, to decide, than others. Believe we already covered that territory. Note the preceding few sentences may be characterized as padding. This should be avoided in appellate briefs at all costs… and in… appellate opinions. Consider this a learning tool. If I believed in footnotes… of course, I believe in them. Unfortunately, they exist. I do not hate them per se; I hate their ubiquity. I could have placed the “learning tool” in a footnote, which I strongly advise not to do. Learning tool #2. In that February column, I promised to continue in future columns with more insights concerning the appellate process. Damn! Did it again. And yet another lesson: edit and edit, cutting away the deadwood. This applies to opinion writing and to brief writing. “Brief.” Get it? Or to put it another way, “brief but complete.” The two are compatible, like “love and marriage.” The statistical accuracy of how often this occurs in either category (“category” better than “discipline”). That my wife often reads my columns should be obvious. Accuracy is vital, but, in some instances, let’s not quibble about words. But how do we get there – to writing the opinion? In my division, I have a title, P.J. At home that stands for pajamas. We are a four-justice division and we sit in rotating panels of three. My vote on how to rule on a particular case carries no more weight than the vote of either of my two colleagues who are also on that case. If two other justices vote to affirm a judgment on appeal and one of the justices votes to dissent, you might say that vote carries less weight… unless the Supreme Court agrees with the dissent. When that happens, not often, the dissenting justice does not brag or strut around the court… for any appreciable length of time. I do not assign cases; they are automatically assigned to each justice in blind rotation when the appeal is filed. Appeals with 70 volumes of reporter’s transcripts, 50 volumes of clerk’s transcripts, and complex issues, for example, we call “MONSTERS.” Monsters move along a different assembly line, I mean, a separate track. The opinions are “worked up” by the justices and dedicated research attorneys. Do we answer every argument advanced by a party? Shouldn’t the argument be “heard”? Of course not. I mean, not always. Some practitioners argue that the litigant deserves to have every argument advanced by appellate counsel decided in the opinion. Every argument is decided, but not all deserve to be in the opinion, especially when one argument disposes of the case, and other arguments are without merit. That decision of course must be made, pardon my bias, by the justices. Who else? The authoring justice then circulates a “calendar draft” to the other two justices on the panel. There may be some questions and concerns communicated either in person or by email among the justices and their respective staff. These communications range in tone and substance to anything from “what were you thinking? etc.” (do not use etc. in opinions or briefs… or columns. Learning tool #3) to something more genteel. All in good humor, of course. The day before oral argument the justices in my division sit around a conference table adjacent to my chambers and talk, and occasionally yell, about the cases. It’s a stimulating and gratifying experience… most of the time. We take an active interest in how the opinion is written. Faulty grammar undermines substance. I earnestly implore my colleagues to criticize the ….. (fill in your own expletive) out of the opinions I author. By the way, “expletives” may, but not necessarily, refer to profanity. Thank you, President Nixon. I do the same with my colleagues. We discuss content and expression. Does the opinion read well? It is comprehensible? Will it cause confusion? How will it be interpreted or misinterpreted? We end the conference with a tentative opinion in mind and on occasion a tentative dissent. We stay friends. The next day at oral argument we think we have a firm grasp of the issues. We are an active court and usually ask questions. Is this annoying to counsel? It shouldn’t be. It is the opportunity for them to know what we are thinking, and whether our thinking needs guidance. Seasoned appellate counsel appreciate this opportunity. At least that is what some of them tell me. I suppose it’s true. When I practiced law and argued cases in front of judges, most of whom are not around anymore, I wanted to know what they were thinking… or if they were thinking. That is why a colloquy (horrible word, don’t use it) between counsel and the judge is usually beneficial. This assumes the judge does not make you feel bad. I try not to do that, but on rare occasions it may have happened. Sorry. I have judged numerous moot court competitions from various schools and most of the students were earnest and impressive advocates. But some students seemed to be sensitive and “hurt” by tough questions. Whether that characterization is the distorted reflection of a… hmmm… person of advanced years (euphemism), I cannot say. Good topic to pursue in the future. Where were we? Oh, yes, what happens after oral argument? We may file the opinion as originally written. But often we may make changes that require analysis of new cases that have been filed after briefing (“after” better than “subsequent to”). Another learning tool–lost count of number. We ask for further briefing when required. Oral argument may prompt us to change our characterization and emphasis. Question asked ad nauseam, but none the less reasonable: How often does oral argument change the result of the original draft opinion? Not often. Not specific enough? The honest answer? How about, almost never. Petitions for rehearing? Pretty much the same answer, only slightly better odds. We will explore these and other topics in future “revelations” columns… maybe. But here’s a teaser. How do judges handle cases when they are litigants? Be ready for a frank and truthful exposé in a future column. Here the word “exposé” is warranted.

April, Not the Cruelest Month

Once April was the cruelest month. April’s lugubrious description now applies to countless past decades. April and months past and future were and will be months of reflection, anger, and resentment. In the current divisive social and political climate, people in and out of the public eye are speaking up and out. This includes judges who in the past have been cautious in voicing their views. The Canons of Judicial Ethics caution that judges take care about what they say or write when their views may reflect on their impartiality. Judges have generally been careful to abstain from voicing their opinions in a public forum for fear it might reflect on their impartiality. To what extent is it advisable for judges to voice concerns about racial prejudice in opinions that may at best not be directly about social injustice? That is a subject I raised in my September column of last year “On the Other Hand.” In B.B. v. County of Los Angeles (2020) 10 Cal.5th 1, a Black man died at the hands of a police officer who applied his knee to the man’s neck. In a footnote the court acknowledged the similarity to the George Floyd matter, but pointed out the case had nothing to do with race, nor that decedent died at the hands of a police officer. The court held that “principles of comparative fault do not require a reduction of liability based on the acts of others.” The decedent’s heirs prevailed. Perhaps I unfairly suggested the concurring opinion was critical of the majority. The concurring opinion by Justice Liu joined by Justice Cuéllar stressed that the majority opinion did not acknowledge the racial injustices that have existed in our state. I thought the concurring opinion was noteworthy because it raised a question in my mind whether it was necessary in light of the majority opinion which emphasized that the holding applied to anyone. The case was not about race. It was about liability. It just happened that the deceased who died at the hands of a police officer was Black. I argued from one point of view that the concurring opinion focusing on racial injustice detracted from the majority opinion’s holding which demonstrated the officer was liable whatever the race of the decedent. The majority opinion in B.B. was a prime example of our high court according justice without regard to race. By focusing on race, which was not an issue in B.B., I argued that the concurring opinion may have given the case a political slant in the eyes of some readers and thus detracted from the majority opinion. But I left open an alternative interpretation by ending my column with “on the other hand …,” an obvious acknowledgement that there is another point of view. That I did not explore the other point of view is a good indication that I was hard-pressed to make a convincing argument. There was no indication in either the majority or concurring opinion that race was the salient issue argued by either side. Was the concurring opinion taking judicial notice of a well-known perception that people of color, more than whites, are more subject to police abuse? That may be true, but that was not an issue in the case. Or did the concurring opinion imply that the race of the decedent made race an obvious but unarticulated issue in the case? On the other hand (here I go again), my acknowledgement there is another point of view speaks to the need to acknowledge the racial inequities that we must finally rectify. Yes, but… sorry, I can’t help it. It’s what law school and more than half a century of law practice and judging can do to someone. Whatever one’s view of the concurring opinion in B.B., it is benign, harmless beyond all doubt in comparison with the dissent of Judge Silberman in Tah v. Global Witness Publishing Inc. (Mar. 19, 2021, No. 19-7132) _ F.3d _ [2021 Lexis 8046]. Yikes! The facts and holding in the Tah case are not important to our discussion. Suffice it to say it was a defamation case in which plaintiffs lost in their suit against an organization accusing them of taking bribes. The majority opinion held, among other things, plaintiffs did not meet the bar of New York Times Co. v. Sullivan (1964) 376 U.S. 254. I need offer only random quotes from the dissent’s (let me choose the following noun carefully) … how about … “tirade”? Rather than summarize Judge Silberman’s dissent, I think it better practice to quote him directly and let readers decide for themselves. Concerning present-day interpretations of New York Times Co. v. Sullivan, Judge Silberman wrote: As the case has subsequently been interpreted, it allows the press to cast false aspersions on public figures with near impunity. It would be one thing if this were a two-sided phenomenon. Cf. New York Times, 376 U.S. at 305 (Goldberg, J., concurring) (reasoning that the press will publish the responses of public officials to reports or accusations). But see Suzanne Garment, The Culture of Mistrust in American Politics 74-75, 81-82 (1992) (noting that the press more often manufactures scandals involving political conservatives). The increased power of the press is so dangerous today because we are very close to one-party control of these institutions. Our court was once concerned about the institutional consolidation of the press leading to a "bland and homogenous" marketplace of ideas. See Hale v. FCC, 425 F.2d 556, 562, 138 U.S. App. D.C. 125 (D.C. Cir. 1970) (Tamm, J., concurring). It turns out that ideological consolidation of the press (helped along by economic consolidation) is the far greater threat. Although the bias against the Republican Party—not just controversial individuals—is rather shocking today, this is not new; it is a long-term, secular trend going back at least to the '70s. (I do not mean to defend or criticize the behavior of any particular politician). Two of the three most influential papers (at least historically), The New York Times and The Washington Post, are virtually Democratic Party broadsheets. And the news section of The Wall Street Journal leans in the same direction. The orientation of these three papers is followed by The Associated Press and most large papers across the country (such as the Los Angeles Times, Miami Herald, and Boston Globe). Nearly all television—network and cable—is a Democratic Party trumpet. Even the government-supported National Public Radio follows along. As has become apparent, Silicon Valley also has an enormous influence over the distribution of news. And it similarly filters news delivery in ways favorable to the Democratic Party. See Kaitlyn Tiffany, Twitter Goofed It, The Atlantic (2020) ("Within a few hours, Facebook announced that it would limit [a New York Post] story's spread on its platform while its third-party fact-checkers somehow investigated the information. Soon after, Twitter took an even more dramatic stance: Without immediate public explanation, it completely banned users from posting the link to the story."). It is well-accepted that viewpoint discrimination "raises the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace." R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 387, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992). But ideological homogeneity in the media—or in the channels of information distribution—risks repressing certain ideas from the public consciousness just as surely as if access were restricted by the government. To be sure, there are a few notable exceptions to Democratic Party ideological control: Fox News, The New York Post, and The Wall Street Journal's editorial page. It should be sobering for those concerned about news bias that these institutions are controlled by a single man and his son. Will a lone holdout remain in what is otherwise a frighteningly orthodox media culture? After all, there are serious efforts to muzzle Fox News. And although upstart (mainly online) conservative networks have emerged in recent years, their visibility has been decidedly curtailed by Social Media, either by direct bans or content-based censorship. There can be little question that the overwhelming uniformity of news bias in the United States has an enormous political impact. That was empirically and persuasively demonstrated in Tim Groseclose's insightful book, Left Turn: How Liberal Media Bias Distorts the American Mind (2011). Professor Groseclose showed that media bias is significantly to the left. Id. at 192-197; see also id. at 169-77. And this distorted market has the effect, according to Groseclose, of aiding Democratic Party candidates by 8-10% in the typical election. Id. at ix, 201-33. And now, a decade after this book's publication, the press and media do not even pretend to be neutral news services. It should be borne in mind that the first step taken by any potential authoritarian or dictatorial regime is to gain control of communications, particularly the delivery of news. It is fair to conclude, therefore, that one-party control of the press and media is a threat to a viable democracy. It may even give rise to countervailing extremism. The First Amendment guarantees a free press to foster a vibrant trade in ideas. But a biased press can distort the marketplace. And when the media has proven its willingness—if not eagerness—to so distort, it is a profound mistake to stand by unjustified legal rules that serve only to enhance the press' power.” Enough! Let’s take a moment to catch our breath. Need I ask, whatever one’s political persuasion, does this retort belong in a judicial opinion? The question suggests the answer. And this takes me to the subject of judges speaking to social issues in a public forum other than in a judicial opinion. Our Chief Justice of California, this title encompasses more than just the Supreme Court, spoke out on the violence directed at Asians: Anti-Asian violence, like any violence based on prejudice, bias, or fear of the other, is reprehensible. Because of who I am as an Asian-Filipina, because of my parents, my aunties, friends, and connected communities of color, these attacks feel more personal. We can and must do better. We deepen our understanding by advancing diversity and respecting our differences. In respecting our differences, we strengthen our social contract. In strengthening our social contract, we abide by the rule of law. As we pass and approach many anniversaries relating to the pandemic, it is disheartening that while we have made progress on the virus, the disease of racism remains. Public officials and, yes, even judges, may in certain instances give voice to social issues in a manner that belies even a hint of partiality. Our Chief Justice did so with dignity and clarity. Justice Liu saw a similar need to speak out on discrimination of Asians in the legal profession and elsewhere in an article in the Los Angeles Times, March 29th. His celebration of the appointment of Rob Bonta, our new Attorney General, will not make any justice on our high court any more or less hesitant to reverse a criminal conviction when the facts and the law require it. Chief Justice Cantil-Sakauye’s statement and Justice Liu’s article can be found on the California Court’s website NEWSROOM.

Expedition vs. Excellence

To follow up on last month’s column “Revelations,” this column centers on, not centers around, opinion writing. All the views expressed herein, I mean here, are this writer’s opinion, I mean my opinion. Why “centers on” and “not around”? The center of a circle is a point. One lands on, or makes a point. The boundary or circumference of the circle is what goes around. Writers who “center around” a point or argument write around the point. That may baffle the reader, and possibly reflect the writer’s misapprehension of the point. Those who argue this is picayune and fussy, that readers know the writer’s “point,” I advise to join those who already decided not to read the rest of this column. Come to think of it, I am not sure I want to write the rest of this column. As long as we are on the subject of picayune, let’s add a few more items I have mentioned in earlier columns, around 30 years ago, my criticism of: “the reason why,” “in connection with,” and its cousins, “with respect to,” “the fact that,” “it would appear that,” “clearly,” “meaningful,” “in terms of,” and “alternative,” to mean more than a choice of one or the other. For the few of you who decided to read beyond the first paragraph, despite thinking these complaints are trifling, it’s still not too late to turn to another article. I would join you, but I have a commitment to the Daily Journal. One writer referred to these pesky distractions as akin to flyspecks on the windshield. That may be true in many cases, but even though you know where you are going, the trip is not as much fun with these distractions. Here are a few observations about judicial opinions that of late appear to be a minority view. Let’s begin by asking–what is a judicial opinion? It is a written reason for a decision. The parties, the lawyers, and the public want to know the resolution of the problem and the reason for the resolution. This gives all readers a reasonable prediction about how to conduct their affairs. In most cases, every issue presented by the litigants does not have to be answered. If one important issue decides the case, there is no need to answer every other issue raised. This is not a rule that should apply to all cases. On occasion, judicial opinions may require a historical and statutory analysis. But in general, an extended discussion is best left to the law professors. Court of Appeal and Supreme Court justices are by definition professional writers. They all have their individual styles, but it is helpful to examine how the opinions of the mostly undisputed outstanding jurists of the past crafted their opinions. Whether you agree with the results or not, the opinions of Holmes, Cardozo, and Traynor, to name a few, are mostly short and concise. These master writers did not have word processors to seduce them into writing 70 and 80 page opinions. I suspect if they had word processors, they would have used them as tools to achieve concision rather than prolixity. Wow! And, yes, we all know the saying, “It takes a longer time to write a short opinion.” It does. But it’s worth the effort and some opinions need time to mature and ripen. But the parties are waiting for the result. The title of this column intrudes with its troubling message: honing to perfection vs. the litigants’ need of an answer so they can get on with their affairs. Some cases we call “monsters” take a while. Thousands of pages of transcripts containing motions, testimony, and rulings, take time to digest and then write about it in an opinion. Getting it right and getting it out are perennial problems. We will explore these and other issues relating to the writing of opinions and even appellate briefs in future columns. A good future title might be “Revelations II” and maybe “III” if I get tired writing Revelations II. How we prepare for oral argument and how my division handles dissents and concurring opinions might be of interest. Now that I have peaked your interest, the three or four of you who are still reading might expect me to continue with these issues now. I had my second Covid19 shot yesterday and my arm is sore. So I am through for now, get it? Mmm…we might include civility in future columns. And let’s also add bias, implicit, and otherwise. And one other thing, if you find any grammatical or other errors in this column, don’t bother to call it to my attention. The mistakes I have made and will continue to make are legion.

Revelations

My good friend and colleague Justice William Bedsworth (Beds) is a talented writer and columnist. Some time ago we were talking about our mutual obsession, or if you will, neurosis, for writing columns. Why anyone would commit themselves to writing a periodic column under a self-imposed deadline while also facing deadlines to write and file opinions in a timely manner is beyond my ken. Writing a periodic column reminds me of Samson. You know what he did to columns. Beds and I mused that when one has been writing a column for decades, the columnist could possibly … inadvertently, of course, recycle earlier columns. Mmm, not a bad idea. But after more than 30 years of writing a column for the Daily Journal, I cannot remember whether I inadvertently recycled something I had written earlier as opposed to deliberately doing so. But I am not so vain as to think a reader … well, maybe one or two elderly readers, might note what they imagine is a repetition and out of perversity write a complaint to the editor. To brace myself for what could be the shock of discovering that I have rewritten or reimagined a past event, I listened to the wonderful Lerner and Loewe song “I Remember It Well” from the movie Gigi, sung by Maurice Chevalier and Hermione Gingold. I urge you to listen to it on YouTube. For the young, it is what to expect. For the mature (euphemism for elderly), you know what I am talking about. Certain topics that have permutations in different situations bear reexamination. Columnist Myron Moskowitz who offers invaluable pointers about appellate practice for the Daily Journal will look at a topic whether it be effective brief writing or oral argument from different perspectives in more than one column. Trial lawyer John Blumberg has written a variety of articles for various publications about effective advocacy. The nature and posture of a particular case may determine how best to use direct or cross-examination. Blumberg has shown how direct and cross-examination of lay witnesses and experts may vary depending on the nature of the case. Reexamining an issue we decided in the past often offers new insights. Blumberg notes that it is wise to rethink what we thought we understood. I use this as a segue into a brief look at how my appellate court works and how I know most others work in general despite specific differences. This is prompted by an article in the Daily Journal last Thursday, January 28th. Well-known appellate attorney Jon Eisenberg complained to the Judicial Performance Commission about delays in filing opinions in the Third Appellate District. As a rule, I would not write on this subject at this stage. But many readers have asked for my view of Eisenberg’s complaint and the phenomena of delay in general. And because like Mount Everest the topic is there and challenging, I offer these few general comments. I draw on articles, columns, and lectures I have given in the past on appellate practice to give the reader a context in which to consider the subject of delay. Please note Eisenberg’s complaint is not about the quality of work produced by the Third District. I often look to the opinions from the Third District for guidance in my own opinions. I know and respect the justices and feel the same about Eisenberg. I have served on the Court of Appeal for nearly four decades. (Hope that is not interpreted as a declaration against interest.) And though I have written on this subject in previous columns, I offer a perspective into the workings of many Courts of Appeal, drawing specifically from my own division. I offer this not as a defense or indictment of the Third District. But it might provide a glimmer of insight to dispel possible misimpressions readers may have drawn from Eisenberg’s complaint. I will not presume to speak for the Third District, but in my division, we have a” blind draw.” Cases are assigned in rotation to the justices as they are filed with the clerk. So-called “monster” cases, with multi-volume records, are on a separate rotation track. This way the cases that require more judicial resources and time are more equitably distributed. All justices have a judicial assistant and research attorneys who are indispensable in helping draft the opinions. The time a justice spends on a case is obviously determined by the difficulty and novelty of the issues presented. It may involve distinguishing, agreeing, or disagreeing with other published opinions. Because appellate opinions involve three justices, the two justices who are not authors of the opinion must be intimately familiar with the issues to decide whether to concur or dissent. This, in turn, requires research and close analysis of the briefs and record in the author’s particular case. Often cases are continued for a variety of reasons. The attorneys request continuances, or justices may “hold” an opinion in which an issue is pending for decision before the Supreme Court. Sometimes it is advisable to wait for our Supreme Court to rule on an issue pending in that court. And I need not repeat the cliché about justice delayed. It is an issue we all take seriously in keeping a fair balance between quality and expedition. But keep in mind that what is missing from Eisenberg’s complaint are the reasons for the delay. And that has made all the difference

Potpourri or Get It Off Your Chest

Looks like our Democracy is intact. Whatever one’s politics or rationale for positions extreme and otherwise, the courts maintained their independence, ruled as they had to, and forestalled what could have been a disaster for our country. After decades of careful study of the law, its foundation and principles, I have come to an irrefutable conclusion, which I pass on to you, dear reader. Cases based on facts… must have facts. The facts lead to the law, its interpretation, and its application to the facts. Granted, how judges interpret those facts can lead to differences of opinion. That is why judges have a limited circle of friends in constant flux. Judges are grateful for their appointments, but our oath of office compels loyalty to an ideal that dwarfs loyalty. Now for something different and timely; let’s go to the opposite end of the spectrum – New Year’s resolutions. I do not make them. They are promises. Why make a promise you cannot keep, especially when it is to yourself? Can I truly be a better person? Wait, that doesn’t sound right. There is a difference between going a millimeter to arrive at a goal within reach, and traveling (“going” is inadequate here) light-years to achieve an unattainable goal. By the way, light-years measures length, not time. Whoops! Just thought of two New Year’s resolutions I am determined to keep. Please ignore previous paragraph. Resolution #1: Master the new technology of communication, namely Zoom and Bluejeans. Resolution #2: Come to grips with or change the names of the new technologies. “Zoom?” “Bluejeans?” These perky expressions were used in comic books when I was a kid. That was a while ago. I am working on appropriate names for new complex technologies on the horizon. “Whoosh,” “Pow,” and “Shazam,” are high on the list. Must admit, I like these fun names, but I confess to some discomfort when the Supreme Court and Courts of Appeal hear oral argument on cases involving murder, evictions, and financial ruin through a medium called Bluejeans. I am not a stuffed shirt (where did that expression come from?), but the more high-tech the technology, the “cuter” and more juvenile the name. My court has conducted oral argument via Bluejeans several times this year, and I confess I have worn bluejeans during a few of those oral argument sessions. And a caution to attorneys and judges conducting such arguments. What you see of yourself on your screen, others see the same on their screens. This includes what goes on in the background. This is a respectful publication so I will not relate … never mind. Forget I even brought it up. The courts and the Bar have worked diligently to work as best they can through the pandemic. And our Supreme Court is working diligently to resolve important issues during this crisis. I am sure that some of the issues occasioned by recent legislation relating to criminal sentencing that is creating havoc among Courts of Appeal will be decided soon. Right? Penal Code section 1170.95 comes to mind. This of course has nothing to do with New Year’s resolutions. And I end with a goodbye to two good friends and colleagues who recently passed away, two exceptional people whose contribution to the judiciary endures. Court of Appeal Justice Rick Sims of the 3rd District and I were appointed to the Court of Appeal in…oh dear…1982. His opinions reflected clarity, wisdom, and scholarship. He was the ideal justice with a subtle sense of humor and firm grasp of the rule of law and common sense. I commend you to read “What Appellate Judges Do,” 7 J. App. Prac. & Process 193 (2005). Available at: https://lawrepository.ualr.edu/appellatepracticeprocess/vol7/iss2/3. It is one of the best explications of what the courts do. It is a must read. I also suggest you view his interview on the oral history of appellate justices on YouTube. And we will all miss Joan Dempsey Klein of the 2nd District Court of Appeal. I knew Justice Klein for a few years…since…1965. Yikes! We became buddies over the years and I called her Joanie. She had a number of nicknames for me. She was a fighter with a sense of humor. Anyone who called her Jack Dempsey Klein got decked. I would not even think of going a practice round with her. Back in the 60’s she ran the hectic municipal master calendar court like a…master. She proved a woman could do the job better than most men. She never stopped proving that. She was an inspiration to women in the law and responsible for the careers of many of our distinguished women lawyers and jurists. So to add to your viewing pleasure, I urge you to watch the oral history of Justice Klein on YouTube where I had the privilege of interviewing her. You will truly know what a remarkable person she was. I guarantee that watching the oral histories of both Rick Sims and Joan Dempsey Klein will make a difference in your life whatever your profession.

301*

Granted, I made a big deal about my 300th column. When I brought it up in conversation, others would change the subject. I acknowledge that in the well-ordered cosmos the anniversary was less than insignificant. But what is significant is the asterisk. If you missed it, it is in the title, sort of like Barry Bonds vs. Hank Aaron. Because facts matter, and especially so in the law, I acknowledge after reflection that my November column, while technically my 300th column, should not be so designated. In fact, the 300th column is more like the 297th. For those of you who are still reading, here is the explanation. In the past, whenever I “wrote” my 100th anniversary Daily Journal column, I penned (didn’t want to repeat “wrote”) a brief paragraph or two and repeated my first Daily Journal column in 1988. That column was about depublishing, and I republished the column about depublishing. Republish, a way to get even for depublish. Get it? There’s a bit of irony for you. Simple arithmetic. Let’s see, columns numbers 100, 200, and 300 are not full columns. That makes three columns, right? So that means my 300th column will not truly occur until March 2021… if I am still writing a column next year. Good segue into what follows: taking credit. Taking credit, a good topic at the end of the year. Its cousin–things are not what they seem–will be explored in a future column. Who knows, maybe my 302nd or, if you will, my 299th. Titles often give persons credit for sanctioning (used in the good sense of the word here) the work of others. Our presidents get credit or blame for picking an array of experts to advise them and to head agencies. Historians, academics, even columnists, acknowledge the contribution of others for the articles and books they author. (I am not crazy about turning nouns into verbs.) Darn, I just did it. Often those who help others in their labors are called “staff.” Those individuals who make up the group called “staff” seldom receive individual credit. “Staff” should not be confused with “staph,” the shortened form of staphylococcus. Staff in the singular can be a rod or pole to use while hiking or beaning someone. But here we are talking about staff as a collective noun to describe a group of persons who work to make other people look good. But as long as we are on the subject of taking credit, judges also get credit or blame for decisions they make. Yes, we all get what we deserve, but lawyers and staff make the contribution to arrive at the decision. We don’t sit there and make it up… although we have been accused of that. Appellate court decisions are the final product of the work of lawyers, colleagues, and staff. My thanks to Justices Yegan, Perren, and Tangeman, their staff and mine, research attorneys Lauren Nelson, Peter Cooney, and Robert Miller, and judicial assistant Bonnie Edwards, for making me look good when I follow their advice. It’s the end of a difficult year and I want to acknowledge my gratitude to them and to Danny Potter, Clerk of the Second District, and Patricia Silva, Assistant Clerk of Division 6, and her staff (got to stop somewhere, sorry), for their invaluable contribution. And everyone else in Division 6. Kudos to Justice Martin Jenkins and Los Angeles Presiding Judge Kevin Brazile for acknowledging credit when it is due. They endorsed and put into practice a judicial mentoring program for attorneys who wish to become judges. They also deserve praise for acknowledging that the program was the brainchild of Judge Helen Zukin. As reported in the Daily Journal, this program helps attorneys wishing to apply for judgeships to meet with a superior court judge to help them with their applications and to “demystify” the application process. This, in turn, encourages a large pool of applicants and encourages diversity. And finally some thoughts about my dear friend and colleague Justice Paul Coffee who passed away last month. Paul was Catholic, a Navy pilot, a Republican, an insurance defense attorney, everything I am not. Paul remarked that these superficial differences were meaningless. You bet, Paul. You brought a healthy sense of practicality, common sense, and wisdom when you became our colleague in Division 6. You courageously fought a long illness after your retirement from the bench in 2012. And we had many conversations and visits during that time. How fortunate I was to have your friendship and that last visit shortly before your passing. So, Paul, it’s not goodbye. We both decided that.

Three Hundred Years Ago, with introduction by Doppelganger, Gilbert Arthur

Dear Reader, You might think this introduction is a cute trick. It is partially; omit “cute.” I am not the columnist Arthur Gilbert. I am Gilbert Arthur. I have been enlisted to write an introduction to Arthur Gilbert’s 300th column, as if that is something special. It is not. It is just another column. Arthur Gilbert and I have some things in common: we both have two first names – only mine, Gilbert Arthur, sounds literary. And as befitting my name, I offer a few comments about the columnist who hereafter I shall refer to as “Gilbert.” Gilbert apparently thinks his 300th column is a big deal. I repeat – it is not. If “300” is so important, why doesn’t Gilbert write about what happened 300 years ago? I am sure it crossed his mind. 300 years ago, the typewriter was patented. If Gilbert had been alive 300 years ago, we still would have been stuck with his columns. While we are on the subject of 300, how about what happened 3,000 years ago? Camels were domesticated in Egypt. People somehow first began building Stonehenge and hieroglyphic writing began, an apt description of Gilbert’s columns. In 1988 the Daily Journal enlisted Gilbert to write an article about what he considered, and still does, an odious practice then in common use by the California Supreme Court known as “depublication.” Now there’s a concept that might be useful if applied to Gilbert’s columns. Gilbert’s unusual article, and the riots that followed, prompted a Daily Journal editor, apparently having a bad day, to suggest (oh dear) that Gilbert write a column for the Daily Journal. What was he thinking? The Gilbert columns have gone on year after year. To what end? He skips from one subject to another and in the labyrinth of his mind (a euphemism) he finds connections between items, events, and topics that to normal people have no relationship whatsoever. To use a common, vulgar expression, “go figure.” Think what it would be like if Gilbert did not have his judicial assistant Bonnie Edwards saving him and us from disaster during her noon-hour proof reading. And let’s add Daily Journal Legal Editor Ben Armistead who steels himself when Gilbert’s monthly drafts arrive. And a badge of courage to Editor David Houston. On this and other prosaic anniversaries, Gilbert contrives to republish his first column that ironically is about the concept of depublishing, a notion I have suggested could be applied to all 300 of his columns. Chalk it up to laziness, one less column to write. I do not apologize for this frank assessment. If Gilbert berates me, he berates himself, a practice he has refined to an art (pardon the expression) most of his life. We have engaged in this contentious exchange around the time he reached his fourth, maybe fifth birthday. So here once again is the column that started it all. It Never Happened The Los Angeles Daily Journal Thursday, June 9th, 1988 Arthur Gilbert Most people don’t know what Court of Appeal justices do, and that includes many trial judges. A Court of Appeal justice writes opinions, “grinds them out” would be a better way of saying it. Henry Ford would approve. The opinions bump along the assembly line and then chug down the road to oblivion. Along the way they are used or misused by attorneys or judges, who sometimes read them. But deep within the heart of every appellate justice there lies the seed of an occasional masterpiece, a gem that would make Benjamin Cardozo turn green with envy. It starts with a case that fortuitously comes your way. Something special occurs during this random encounter. You begin to feel ideas growing and developing in your brain. The Unseemly and Grotesque Stage During an appropriate period of gestation, the ideas coalesce into a concept. When the concept fights and claws its way out of your brain and plops in a heap on the page, you know you are ready to write the first draft of the opinion. When you’re done, that draft is wiggling with life but not ready for public consumption. It is unseemly and grotesque, like the mutant baby in the cult film classic “Eraserhead.” But it’s your baby, and you nurture it and shape it, draft after painstaking draft. And then you know, as if by instinct, that the opinion is ready. It shimmers with clarity and reason. Magnanimously, you acknowledge that the brief on the winning side was persuasive, but the opinion has you signature - figuratively and literally. The opinion reflects your style, your panache, your essence. Shortly after the publication of your chef-d’oeuvre, you happen to attend a cocktail party given by the local bar association. You try to avoid an attorney known for his unctuous fawning. But when he starts praising your new opinion, you find his conversation engaging and stimulating. You tell him in a modest, self-effacing tone that you hope the opinion will be useful. You think it might be unseemly to tell him that you know the opinion illuminates the law, gives it meaning and purpose, that it persuades and sparkles with reason and insight. I have experienced this. But it’s hard to talk about because it never happened. No, I don’t mean I imagined it. I don’t mean I’m crazy and hallucinating. It’s much more than that. I mean the state Supreme Court depublished it. Someone up there simply pulled the switch on an opinion that had just begun to bask in the light of recognition. The ostensible reason for this ignominious termination is that the opinion reached the right result, but for the wrong reason. Maybe so, but the recent use of depublication on such a wide, unprecedented scale means that there are a whole group of justices writing poorly reasoned opinions these days. I suppose the depublication rule helps hold back the flood of cases inundating the Supreme Court, but it also keeps ideas locked in the closet. No Useful Purpose Whatever the reason for the rule, it serves no useful purpose. Why hide the reasoning of an opinion, whether good or bad, from the rest of the world? If the Supreme Court does not care for an opinion, it can decertify it. The opinion may lack precedential value, but at least it exists as an object of either enlightenment or of ridicule. Another interpretation of the law is at least accessible to scholars, lawyers or collectors of the bizarre and occult. Decertifying instead of depublishing opinions will not increase the Supreme Court’s caseload. It will, however, permit the expression of all ideas and will serve an important educational function for the bar and the public. And, who knows, the spurned opinion just might become the law in the next millennium. I’m not holding my breath that the rule will be changed in the near future. If it does not change soon, one of my colleagues suggested that we publish all the depublished opinions. That’s a brilliant idea. I just may start an underground publishing firm that will publish only depublished opinions. I’ll call the company East’s Oxymoron Publishing Co. - “Opinions That Get You in Lots of Trouble If You Cite Them.” Better yet, maybe we can change the rule so that justices on the Court of Appeal rather than the Supreme Court will have the last word on whether an opinion is published or depublished. I can just imagine what would happen with such a rule. Assume I have decided not to publish an opinion, but the Supreme Court wants it published. “Oh please, publish this opinion,” the Supreme Court asks me. “No,” I answer. “I don’t think it really merits publication.” “But it’s so good, you have crystallized your ideas into a succinct, readable treatise on this complex issue of law. There is a desperate need for your opinion. Its publication will be a significant contribution to the people of this state and the legal profession.” “Well…I’ll think about it.”

#299, but who’s counting? Or the ultimate penultimate.

Yes, this is #299. Not bragging. “Numbers” is a word invented by people to count… things. Just as “a rose by any other name is a rose,” or Gertrude Stein’s rediscovery that “Rose is a rose is a rose is a rose,” a number is a number is a number is a number. A single number is insignificant even when it is labelled a “record” because in time there will be a new record. Roger Bannister breaking the four-minute mile comes to mind. For a while it caught our attention. Of course a record number of deaths or tragedies can and we hope prompt us to action. My only point is that a specific number means little when one considers that numbers go on for infinity. So why make a deal about the number of this or subsequent columns? Good question. Or to put it another way, why even bring it up? Another good question. I have no good answer other than to repeat, this is my 299th column. To continue with the same theme, whether I write my 300th column next month remains to be seen. Could happen or not. This I could have said about by 233rd or any other column before I wrote it. Whatever the number, columns in every sense of the word are here to stay. Columns can be decorative, but they also hold up structures in the mind or the physical world. Columns also hold up second, third, fourth (numbers again) stories in buildings. Columns hold up words in the sense we are speaking about here and tell stories and hold up ideas. So I am not so presumptuous to make any predictions about a 300th column that has not occurred and remains to be read, or “actualized” if I were a philosopher. Enough about how many columns anyone would write. Whatever the number, some may be worth reading, whoever the columnist and whatever the subject. Notice I wrote “some.” In past columns I have explored the “risks” in expressing opinions that may offend readers who take exception to a word or a phrase they interpret as reflecting bias or insensitivity. I accept that all of us no matter our race or ethnic origin may harbor an unconscious bias that is revealed in conversation or in a column. Nevertheless, I have railed against hyperconscious self-censorship that militates against the open exchange of ideas. I have already written about the word “niggardly” that has nothing to do with race, but would likely offend any decent person unfamiliar with the word. Is it forever banned from usage? We may all have our share of guilt, but instead of beating ourselves up over it, let’s be conscious of it and do something about it. I have noted that some columnists, reflecting the mood of many of us, are so riddled with guilt they write about their character flaws and misdeeds, presumably to show how human they are. I get it. How else could I write 299 columns? But judges are human… most of them, and they make mistakes just like everyone else. That’s why we have Courts of Appeal… oh, yes, and a Supreme Court. It used to be that certain topics were taboo like bodily functions, a favorite topic of elderly men. I admit to writing a few columns on the topic. Elderly men often talk about their panic in public where there are no public restrooms available. An even more pressing (pardon the expression) concern during the pandemic. This includes judges. I know it’s hard to believe. But this is a subject I save for my Saturday morning running buddies. I mean, my walking buddies. We used to run. Judge Judith Chirlin, now retired, and I gave a talk in Moscow to Russian judges in the early 1990’s about American jurisprudence. The Russian judges asked good questions ranging from statutory interpretation to the death penalty. One judge asked a long question with a tone of urgency and passion. When the interpreter finished the translation, I sensed the anticipation and interest as the Russian judges waited for my answer. Rough translation of the question: “Artur, when you have important witness on the stand in the middle of cross-examination, and you have to go bad to the bathroom, what do you do?” What’s the point of all this? If we can talk about bodily functions, we can talk about anything and not allow fleeting concepts of political correctness stifle the free exchange of ideas. Maybe being offended now and then is good idea. Let us hope that doing so will not be as futile as whipping the Hellespont. My friend Professor Marvin Zuckerman told me that when he was a graduate student in linguistics he learned that trying to fight a usage, and I would add, a habit, was like trying to “whip the Hellespont.” Xerxes, King of Persia, devised a plan to cross the Hellespont to invade Greece. He had his engineers build a few bridges to cross it. A storm destroyed the bridges before the Persians could cross. Xerxes was “cross” in the other sense of the word, and repeatedly whipped the waters, among other things, to punish them. So, I repeat, let us not allow the open exchange of ideas, no matter how unpopular, be as futile as whipping the Hellespont.

On the Other Hand…

Events that shape and affect our society sooner or later resonate in our political institutions. I include under the rubric “political institutions” all state and federal courts. And of course the most authoritative pronouncements on the law and its application come from the U.S. Supreme Court (refuse to write “SCOTUS” - sounds like the name of a pet. “Here SCOTUS, come here SCOTUS, no SCOTUS.” Don’t go there.) I think we all agree that the tasks of all courts, and particularly our nation’s high court, involve more than calling “balls and strikes,” though that is an essential element. Court decisions do involve issues of national importance that reflect profound changes in our society and culture. Brown v. Board of Education comes to mind. The recent series of police shootings of Black suspects caused our country and other nations to focus on persistent decades of racial inequality. And this in turn compelled our state Supreme Court to issue a declaration signed by all members of the court reflecting a commitment to social justice. It is remarkable that this declaration was not memorialized in an opinion, but stood alone, signed by all the justices. The declaration is compelling, moving, and profound. It states: “In view of recent events in our communities and through the nation, we are at an inflection point in our history. It is all too clear that the legacy of past injustices inflicted on African Americans persists powerfully and tragically to this day. Each of us has a duty to recognize there is much unfinished and essential work that must be done to make equality and inclusion an everyday reality for all. We must, as a society, honestly recognize our unacceptable failings and continue to build on our shared strengths. We must acknowledge that, in addition to overt bigotry, inattention and complacency have allowed tacit toleration of the intolerable. These are burdens particularly borne by African Americans as well as Indigenous Peoples singled out for disparate treatment in the United States Constitution when it was ratified. We have an opportunity, in this moment, to overcome division, accept responsibility for our troubled past, and forge a unified future for all who share devotion to this country and its ideals. We state clearly and without equivocation that we condemn racism in all its forms: conscious, unconscious, institutional, structural, historic, and continuing. We say this as persons who believe all members of humanity deserve equal respect and dignity; as citizens committed to building a more perfect Union; and as leaders of an institution whose fundamental mission is to ensure equal justice under the law for every single person. In our profession and in our daily lives, we must confront the injustices that have led millions to call for a justice system that works fairly for everyone. Each member of this court, along with the court as a whole, embraces this obligation. As members of the legal profession sworn to uphold our fundamental constitutional values, we will not and must not rest until the promise of equal justice under law is, for all our people, a living truth." And this takes me to a recent case, B.B. v. County of Los Angeles (2020) 10 Cal. 5th 1. The case involved sheriff deputies attempting to subdue an arrestee, Darren Burley, an African American. One deputy pressed one knee into the center of the suspect’s back and placed his other knee onto the back of the suspect’s head near the neck. Burley died of suffocation. Sound familiar? Plaintiffs, the decedent’s child and estranged wife, sued for damages. The case involved an interpretation of Civil Code section 1431.2, subdivision (a) enunciating principles of comparative fault in civil cases. The court in a majority opinion, written by Justice Ming Chin, held that section 1431.2, subdivision (a) does not authorize a reduction in the liability of intentional tortfeasors for noneconomic damages based on the extent to which the negligence of other actors including a plaintiff contributed to the injuries. Principles of comparative fault do not require a reduction of an intentional tortfeasor's liability based on the acts of others. The defendant sheriff deputy who caused the death is not entitled to a reduction of his liability for noneconomic damages based on any negligence of the decedent or other defendants. In footnote 2, the B.B. court acknowledged that the decedent was African American. “We are cognizant that the facts of this case bear similarities to well-publicized incidents in which African Americans have died during encounters with police. These incidents raise deeply troubling and difficult issues involving race and the use of police force. But the question plaintiffs raise in this case—whether and how section 1431.2 applies to intentional tortfeasors—does not turn upon either the decedent's race or the fact that a law enforcement officer, rather than a civilian, committed the intentional tort.” And here I go again, finding something remarkable in the thought-provoking concurring opinion of Justice Goodwin Liu, joined by Justice Mariano-Florentino Cuéllar. I subscribe to Justice Liu’s views. But I was struck by the rebuke levelled at the majority opinion. Liu acknowledges that the wrongful death judgment “affords a measure of monetary relief to Burley's family.” He goes on to say the majority opinion “does not acknowledge the troubling racial dynamics that have resulted in state-sanctioned violence, including lethal violence, against Black people throughout our history to this very day. (See Felker-Cantor, Policing Los Angeles: Race, Resistance, and the Rise of the LAPD (2018); Coates, Between the World and Me (2015); Baldwin, The Fire Next Time (1963).)” I note that he cites James Baldwin’s “The Fire Next Time.” I read that work and attended a lecture in the early 60’s at Berkeley where James Baldwin, John Cheever, and Philip Roth appeared on a panel. It was worth cutting property class for that event. I still recall to this day that Baldwin spoke of offenses to Black people occurring in the name of the white population, allowing “tacit toleration of the intolerable.” I did not interpret Baldwin’s observation as an indictment, but rather a call to rouse the white population from apathy and neglect. It was a call to jettison apathy and to actively support racial equality. The concurring opinion goes on to catalog racial abuses that have occurred throughout our history and notes how courts on the federal and state level have fallen short in meeting their commitment to administer justice involving racial matters. It even speculates that had plaintiffs’ 42 U.S.C. section 1983 action not been dismissed in federal court because of the running of the statute of limitations, they would have had an uphill battle to obtain redress in those courts. The concurring opinion also highlights the ways in which the qualified immunity doctrine emasculates section1983 actions. The concluding paragraph picks up on the theme of the first paragraph and again acknowledges that a “wrongful death judgment with substantial damages is one way of affirming the worth and dignity” of the decedent. But again cautions that the racial dimensions of the case should not escape the court’s notice. And then cites the court’s June statement of solidarity with a question, “How are we to ensure that ‘the promise of equal justice under law is, for all our people, a living truth’? (Cal. Supreme Ct., Statement on Equality and Inclusion (June 11, 2020) .) Whatever the answer, it must involve acknowledging that [decedent's] death at the hands of law enforcement is not a singular incident unmoored from our racial history. With that acknowledgment must come a serious effort to rethink what racial discrimination is, how it manifests in law enforcement and the justice system, and how the law can provide effective safeguards and redress for our neighbors, friends, and citizens who continue to bear the cruel weight of racism's stubborn legacy.” Despite the passion and strength of the concurring opinion, does it belong here? Yes, the victim was an African American, but the holding applies to any plaintiff in similar or other circumstances involving intentional acts. Footnote 2 answers that question and only two justices signed the concurring opinion. Maybe because of the race and circumstances under which the decedent died, the similarities to the George Floyd murder, the concurring opinion was justified. But would the message of the concurring justices been better expressed in a law review article, and not in an opinion where the decedent happened to be African American? The powerful message of the concurring opinion highlights the inequities that have plagued this country and our institutions. But it can be argued the relevant issues in B.B. are incidental even though Mr. Burley was African American. Justice was accorded his heirs, and the concurring justices acknowledge that. But was this the case to raise historical issues that perhaps might be better voiced elsewhere? Does the court lose its political capital when some members extend the discussion beyond the issue before the court? Does it give appellate practitioners pause concerning their prediction of how some justices might view future cases where litigants are African American? And this in turn may affect perceptions of justice’s objectivity. On the other hand, these views are a legitimate expression of the changing landscape of a systemic national issue that all our governmental political institutions should acknowledge as often as possible. Are they not an expansion of what all members of the court expressed in its June declaration? “On the other hand…” –an introductory phase that has haunted all law school students– is and will always be omnipresent in the legal profession.

Chin Up

I had dinner the other evening with the philosopher Heraclitus of Ephesus. I remarked that Justice Ming Chin was retiring from the California Supreme Court at the end of August and that I, along with countless others, would miss him. Heraclitus adjusted his toga, took a sip of ouzo from the bottle we shared, and remarked, “All that endures is change.” I think Heraclitus was 45 at the time. And that is old. Heraclitus was impressed with Justice Chin’s accomplishments, but I could tell from his expression he was confused. Of course he was confused. The month of August was then called Sextillis and it had only 29 days. This would put Ming’s retirement on September 2nd. Whoever heard of retiring two days into a new month? Did I mention, Heraclitus of Ephesus was born in 535 BC, and the calendar as we know it had not yet been devised? It was not until 46 BC that Julius Caesar added two days to August, I mean, Sextillis. He did that a few years after he took a quick break to write the seven volumes of the Gallic Wars, while protecting the far-reaching Roman Empire. It took someone like Augustus, an emperor in 8 BC, to have the name of the month Sextillis changed to Augustus. The Roman senate made it happen. Having one’s name on a month is better than on a building. This discussion of ancient Roman history might alert the attentive reader to conclude my dinner with Heraclitus of Ephesus was imaginary. But who are we to make such judgments? I can, however, assure the most skeptical that the ouzo was the real thing. I muse on the remarkable career of my friend Justice Ming Chin. Change is inevitable, but how quickly or slowly it occurs is a matter of perception that varies depending on one’s perspective. But with Justice Chin, his “elevation” (sounds religious) to higher and higher judicial plateaus was swift (an understatement), but well deserved. A brief estimate: Judge of the Alameda County Superior Court, 45 minutes; Associate Justice of the Court of Appeal, one hour; Presiding Justice of the Court of Appeal, two hours; and finally… Associate Justice of the California Supreme Court, 15 minutes. If these timeframes seem an exaggeration, think of a successor to Heraclitus, Einstein. Time is relative. Or if that is too weighty, consider the appearances of the obelisk in Kubrick’s classic motion picture “2001.” In whatever manner we contemplate time, Justice Chin’s decisions on the various courts on which he served reflect the judiciary at its best. Mention the name Justice Chin and one immediately thinks of his civility, collegiality and humor. He is down to earth and has no sense of self-importance, but he does have a keen sense of the importance of his work. His well-written opinions reflect a fair and objective exposition of the law. He reflects everything we expect from a judge – humanity, objectivity, and professionalism. I am fortunate to know Justice Chin and honored to call him a friend. I join his many friends in wishing him and his wife Carol happiness and joy in the adventures that lie ahead.

Pandemic Pandemonium

It’s all different. More so than any of us can remember. Lesson we all know, but many have stored in the back of a mental closet, the cliché that now bores through to the core: “take nothing for granted.” Complaints about court delays before March of 2020 seem oddly quaint. Trial court presiding judges are scrambling to figure out how and when to open, and in what manner. Following Supreme Court guidelines, it is still a monumental job managing cases entitled to priority and how and where to decide them. The larger the court, the larger the dilemma. Presiding Judge Kevin Brazile of the Los Angeles County Superior Court, the largest trial court in the country, with some 481 judges, not to mention commissioners, covering a geographical area of close to 5,000 square miles, faces a Herculean task. He is the right person at the right time who always seems to keep his cool. I bet he does at home as well. With me, it may be a different story. My wife and I signed a confidentiality agreement occasioned by my working at home. Nevertheless, I invariably take her side of any argument. Even I find it impossible to live with me. During the pandemic, the Court of Appeal has an easier time managing its caseload than trial courts. In case anyone forgot, we write opinions. We can do it from laptops and computers at home. Research tools are readily available for us, research attorneys, and our judicial assistants. And as a rule, we conduct oral argument only once or twice a month. We now do it through the marvels of video conferencing via Bluejeans. Can anyone tell me why “cute” monikers are so often used to describe new software technology? Probably to assuage the fears of techno-cowards like… me. Where were we? Oh, yes, oral argument video conferencing. There are advantages. In an article in the June 2020 edition of the London Financial Times entitled, “Pandemic puts remote courtrooms on trial,” barristers and judges offered various assessments of the procedure. For barristers, it can save two to three hours in traffic. Thought they were talking about Los Angeles. One barrister who argued her case on the phone from her living room said the experience was much like arguing in court even though her living room did not reflect “the splendor of London’s neo-Gothic Royal Courts of Justice.” To get in the mood, she wore a business suit and argued from a stand-up desk. She could have worn her pajamas, something I strongly recommend lawyers avoid when arguing via video conferencing – would be hard for me to stay awake during an uninspiring argument. The barrister learned immediately after arguing her case that she won. She then asked herself whether she might put on a “cup of tea.” So English. But there are disadvantages to video conferencing oral argument. Much harder for the judges to interrupt. I mean, we do have questions. My subtle approach to overcome this problem is simple – frantically waving my hands in front of the camera to signal the lawyer to stop talking (a euphemism). Lawyers should not be vexed with these interruptions. What better opportunity to know what judges tasked with deciding the outcome of a case think or ask for enlightenment? I suggest that anyone on the video conference be aware that “they” (now permissible) are seen up close. This applies to judges as well as lawyers. Gestures or expressions of distaste do not serve a valuable purpose. I won’t be graphic, but… you know what I mean. Of course, gestures we make to those gathered around the telephone concerning proposals or negotiations to another party on the other end of the line are a different story. I speak from experience. Today, however, phone conferences are mostly a relic of the past. But you can avoid embarrassing faux pas gestures in video conferencing because you see yourself on camera just as all other parties see you. Simply display a genial and interested expression no matter the inner range and rancor. Acting coaches are available for those who imagine their integrity an obstacle to such dissimilation. I recommend appropriate attire… from the waist up. If you are wearing shorts, underwear, or… well, whatever, do not EVER walk away from the camera. Keep that upper profile from only above the waist, better yet, from mid-chest, in view. This applies to judges and lawyers alike. Judges always wear at least a shirt and tie under the robe. What else? Oh, yes, background. For Zoom meetings, a bookcase in the background is impressive. And, yes, of course, the bookcase should contain books, although an occasional family photo is permissible. Depending upon who you wish to impress, I suggest an eclectic array: Dante’s Inferno, Gibbon’s Rise and Fall, Dworkin’s Law’s Empire, Eliot’s Middlemarch, Proust’s A la recherche du temps perdu (in the original), Piketty’s Capital in the Twenty-First Century… you get the drift. No one said you had to read them, let alone understand them. Better to stay away from more controversial faire, like Mein Kampf or Marquis de Sade’s The Crimes of Love, or Nabokov’s Lolita, which my wife removed from a prominent place on my bookshelf. My wife Barbara and I regularly watch the PBS Evening News with Judy Woodruff. The pandemic requires her and the various news analysts on her show to present their segments from their homes. Ms. Woodruff’s bottom bookshelf in her immediate background contains books on the Civil War. And that reminds me to remind you to keep your pets out of the room in which you are video conferencing. News analyst Lisa Desjardins appears to live in a sparsely furnished Washington apartment with a white L-shaped couch in the background. My wife and I recently missed most of her incisive analysis one evening because we were transfixed watching her black and white cat trying to fish out something from between the cushions. Even when the cat is sleeping, he or she captures our attention. Admit we have been accused of being cat, dog, animal “nuts.” So we all must adapt to what is called the “new normal,” the repugnant phrase that at its birth was properly termed “abnormal.” Within a few months it grew so precipitously that today it is more properly termed the prosaic but horrific “normal.” We have learned that nature controls and that when we fly too close to the sun we suffer the same fate as Icarus. In addition, social upheaval compels us to confront unacknowledged biases and prejudices. And as we face some unpleasant truths, we come to realize status and “position” carry at most a flimsy facade of importance. It is what we are and what we do that matters. To avoid recusals and the perception of bias, judges are cautioned not to publicly voice opinions relating to politics, religion, or controversial subjects that could be the subject of lawsuits. Some, whether resolute or reckless, write columns, and on occasion follow the advice to delete a phrase, a sentence, or the whole damned column. But much can be said from judges who support our mission to fairly and dispassionately administer justice. I applaud our chief justice who recently remarked, “As public servants, judicial officers swear an oath to protect and defend the Constitution. We must continue to remove barriers to access and fairness, to address conscious and unconscious bias – and, yes, racism. All of us, regardless of gender, race, creed, color, sexual orientation or identity, deserve justice. Our civil and constitutional rights are more than a promise, a pledge, or an oath—we must enforce these rights equally. Being heard is only the first step to action as we continue to strive to build a fairer, more equal and accessible justice system for all.” And please note that all seven justices of our high court on June 11th issued this statement on equality and inclusion: “In view of recent events in our communities and through the nation, we are at an inflection point in our history. It is all too clear that the legacy of past injustices inflicted on African Americans persists powerfully and tragically to this day. Each of us has a duty to recognize there is much unfinished and essential work that must be done to make equality and inclusion an everyday reality for all. We must, as a society, honestly recognize our unacceptable failings and continue to build on our shared strengths. We must acknowledge that, in addition to overt bigotry, inattention and complacency have allowed tacit toleration of the intolerable. These are burdens particularly borne by African Americans as well as Indigenous Peoples singled out for disparate treatment in the United States Constitution when it was ratified. We have an opportunity, in this moment, to overcome division, accept responsibility for our troubled past, and forge a unified future for all who share devotion to this country and its ideals. We state clearly and without equivocation that we condemn racism in all its forms: conscious, unconscious, institutional, structural, historic, and continuing. We say this as persons who believe all members of humanity deserve equal respect and dignity; as citizens committed to building a more perfect Union; and as leaders of an institution whose fundamental mission is to ensure equal justice under the law for every single person. In our profession and in our daily lives, we must confront the injustices that have led millions to call for a justice system that works fairly for everyone. Each member of this court, along with the court as a whole, embraces this obligation. As members of the legal profession sworn to uphold our fundamental constitutional values, we will not and must not rest until the promise of equal justice under law is, for all our people, a living truth.” And a final note of caution. In our zeal to fulfill this mission, we must judge with care. An offhand remark, an unconscious slip of the tongue, or an expression that could be perceived as offensive should be met with rational discussion and education. The quickness to condemn with irreversible consequences may reflect a zeal that mirrors what we seek to correct.