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?