A Flicker of Hope? December 2023 Column

In response to the provocative question that assumes we are in the vestibule, or at least the construction site of the dystopian society we have created with the help of A.I., I draw upon what lawyers tell their clients when asked whether they will prevail in their pending lawsuit: “It all depends.” In some quarters… hold that thought and pardon the interruption, but I hope I refuse to do what I am compelled to do when drafting an opinion, only here in reverse, e.g., “Civil Code of Procedure, hereinafter C.C.P.” If, dear reader, you do not know what A.I. is, I envy you and urge you to not read the remainder of this column. Enjoy, to the best of your limited abilities, how to live with a shred of optimism in this troubled world. Is there hope for optimism? If we created A.I., then we are to A.I. what God is to us… if, in fact, God created us. OK, will back off. Just posing a question for thoughtful reflection. If any person or robot reading this column is offended, I deeply apologize. I recognize that, for many, God is perfection, and not subject to criticism or to any type of comparison – period (emphasis on “period”). OK, let’s keep faith out of our discussion and simply limit our reference to creator and created eschewing comparisons to faith or metaphysics. Bringing Darwin into the discussion will only detract. The point is, however we were created, we humans (in the broad sense of the word ) created A.I. And this takes us to the five alarm caution of Dr. Geoffrey Hinton. Like any reasonably competent judge evaluating expert testimony, I find Dr. Hinton – known as the Godfather of A.I., or, if you will, the Dr. Frankenstein of A.I. – credible. While at Google, he is credited with creating a neural network that brought us the wonders of ChatGPT. Dr. Hinton left Google because he has one small concern about his contribution: it will destroy humanity. I suppose Google would not want one of its employees broadcasting to the world that his invention will end the world as we know it. I suppose Hinton signed some sort of a nondisclosure agreement. Even if he did, is Google going to sue him for alerting us to an impending disaster? You may have seen Dr. Hinton on 60 Minutes a few weeks ago. He is certain that his A.I. creation will soon surpass human intelligence. We all know that A.I. can call up so many more items of information than any human brain can. Some responses to my past columns about A.I. reveal a sanguine mood about its future (A.I., not my columns). These insouciant readers posit that we need not worry. They ask rhetorically, “Can A.I. write an opinion as literate as Cardozo, or write a sonnet as original as Shakespeare?” And my response, “Can anyone else?” But the title of this column offers a hint of optimism. I was traveling southbound on Barrington Ave. in West Los Angeles to make my appointment to be a pin cushion for my acupuncturist. A few blocks south of Wilshire, I stopped for a red light. In the crosswalk in front of me, my eye caught an “adorable” (a word I have never used until now) little driverless red wagon food delivery robot called Coco. I choose hereafter to refer to the little wagon as Coco. Coco carefully avoided impeding the determined progress of a young woman preoccupied with her cell phone who was also crossing in front of me. Don’t get me started on cell phones. Arriving at the other side of the street, Coco waited patiently for the light to turn green in the crosswalk that formed a right angle with the crosswalk Coco had previously traversed. Coco and I then continued our respective journeys. I am a little embarrassed to admit this, but I waved goodbye to Coco. Yes, I am aware that Coco was not making judgments about when to cross the street. No doubt Coco was manipulated by a person in the pizza or sandwich shop, who on a computer was directing it to deliver food. So Coco’s feats are dependent on human intervention. This revelation certainly does not refute Dr. Hinton’s horrific prognostications concerning the future enslavement of humanity by A.I. And his warning is enhanced by the recent incident involving a lawyer in New York who used ChatGPT to write a brief that cited nonexistent cases. The judge easily determined the fraud and sanctioned the lawyer. When the lawyer confronted ChatGPT with the fraud, ChatGPT responded that the cases were real and could be found in Lexis and Westlaw. So ChatGPT can match the most reprehensible traits we find in some humans and, in rare occasions, in lawyers. Please no refutations to the last five words of the preceding sentence. Do not want this column to be used as an argument for my recusal in all future cases. So why the flicker of hope expressed in the title of this near doomsday column? Firms that advertise the beneficial uses of ChatGPT acknowledge that on rare occasions things can go awry. In other words, A.I. can, like humans, make mistakes, and, I might add, like humans, lie through their teeth. Pardon the inapt simile. I don’t believe A.I. has teeth. But maybe, like humans, most are good apples. Reference to the company not intended. So… stay with me on this, maybe when the A.I. robots take over the world, there will be good robots like the many good people who make up humanity. I am hopeful that the good robots will prevail over the bad robots and those in Congress will treat one another with respect and not shove or “cane” other members as Representative Preston Brooks did to Senator Charles Sommer in 1856. Or yell and shove one another as they do in modern times. I hold fast to this Pollyanna view, although by a thread. But wait! Something just occurred to me. Chills tingle my spine; I am trying to decipher something in the fog. And suddenly in bright neon lights appear the final words of Mr. Kurtz in Joseph Conrad’s novel… “The horror! The horror!” What if A.I. invented us and is amused by our folly in thinking we invented A.I? Oh my God! Whoops!

FACTS November 2023 column

How about another pedantic, I mean informative, “how to” column for a change? Previous sentence an example of ambiguity. If the column is yet “another,” that signifies it happens often or at least with some regularity. If so, why the words “for a change”? On second thought, maybe the sentence is ok. The “for a change” part is a touch of irony. It is your option, dear reader, to ignore the previous paragraph. But the meaning of the second sentence of that paragraph is what I think a serious writer might ask themselves. Oh dear, in some quarters, the previous sentence I just wrote in this paragraph sets off a grammar alarm that could… caution… do not write …. (“piss off some people” or is it “piss some people off”?) That vulgarity is de rigueur is no reason to write or let alone say it. Admission – I shout, howl obscenities, when I rewrite, and on other occasions. How much better to have written in that second sentence: “But the meaning of the second sentence of that paragraph is what I think serious writers might ask themselves.” This satisfies the grammar nerds and accommodates the reality that there are more than two gender roles. The foregoing paragraphs may be worth reading after all to illustrate what any writer who cares about writing, what any attorney who writes anything for any court, and… what any judge on any court should do: reread and rewrite. To quote what has been attributed to dozens of writers (let’s use Justice Brandeis): “There is no great writing, only great rewriting.” Would Brandeis have used the word “‘great”? I doubt it. He probably said what is also attributed to Robert Graves: “There is no such thing as good writing, only good rewriting.” Keeping all these admonitions in mind, perhaps the two previous paragraphs should be rewritten. So, go ahead and do it. It’s good practice. About the title of this column, “FACTS” – Appellate experts and those who flaunt, I mean display, more modest credentials, have offered advice in the Daily Journal and elsewhere on how to write the winning appellate brief. Some of this advice should be taken with a grain of salt. I prefer sea salt. Much of the advice is generally valuable, but because judges are not “fungible,” they… we… may interpret the ways practitioners follow that advice differently. That is because language, the way we describe things and concepts in large part, is based on our experiences. And those experiences differ from person to person. I read once that a professor of linguistics, I think Wittgenstein, held up a box of matches and asked his students what he was holding in his hand. They shouted, “A box of matches.” The professor threw the box of matches in the air at the students. The box opened and the matches scattered everywhere. “That,” the professor is reputed to have yelled at the students, “is a box of matches.” In briefs and opinions, we are describing the facts we believe are relevant to the issues to be decided. It is redundant to refer to facts as true. It is illogical to refer to facts as false. If they are false, they are not facts. Facts simply are. But in deciding the relevant facts, we are making a judgment from a transcript or in some cases a portion of a video. And we are relying on facts that a trier of fact in a court below has decided are true or not. Our guidelines are established standards of review. At this point I am reminded of what my contracts professor told us in law school: “Those in search of certainty should look for another profession.” Our life experiences, predilections, and prejudices can lead us unconsciously to skew the facts that lead to a certain result. Judges must keep this in mind and carefully state the facts with scrupulous care. And practitioners, yearning for a result, must be careful to state the facts accurately even when they may not seem to lead to a hoped-for result. Acknowledging this in the legal discussion section of the brief gives the practitioner the opportunity to interpret those facts in the context of case and statutory authority in a more favorable light to the client’s cause. (Sometimes a long sentence works.) The famous and infamous basketball coach “Bobby” Knight passed away a few days ago. He won 662 games and three national championships. That does not excuse his outrageous conduct. But I recall his responding to a question from a reporter after yet another Knight victory. “Bobby, do you instill in your players the will to win?” Knight responded, “No, I instill in the players the will to practice to win.” To make an opinion or brief shine with clarity, it takes time and effort. How else do you get to Carnegie Hall?

Times, They Changed October 2023 Column

Did anyone notice that I skipped my September column, #330? Probably not. Who cares? Have you noticed that in newscasts and newspapers, when a regular-appearing commentator or columnist is absent, someone will say or, in the case of print media, write, “S.J. Prufrock is away.” Well, we know they are away, but why, and where did they go? I am probably the only person who asks such a nonessential question, even though I am not interested in the answer. The person away could be home watching television. So, I will conclude this paragraph and proceed with the subject at hand, and not reveal why I was allegedly “away” last month. If anyone really cares, here’s a teaser: I was not away. When I first became a judge so many decades ago, I was on a court that no longer exists, the Los Angeles Municipal Court. As soon as the stagecoach let me off in front of the courthouse, I kept my emotions in check. Guess you caught on that the stagecoach gag was an exaggeration and not all that funny. In fact, Bob Dylan had observed a decade earlier that “The Times They Are a-Changin’.” He won the Nobel Prize for literature. Huh? A topic for another day. Many decades ago, I lost count, judges were more guarded about who they truly were as human beings. Today most are more willing to reveal their true personality. Of course, judges, like everyone else, are subject to human frailty. I suspect, hope, that most judges know that. But whether they do or not, there is less reluctance to acknowledge this than in the past when there seemed to be a perception that doing so would adversely affect their judicial status. In a past column, I reviewed the book Tough Cases: Judges Tell the Stories of Some of the Hardest Decisions They’ve Made (The New Press 2018). In Tough Cases, judges who have decided controversial and difficult cases wrote about their doubts and stress in deciding those cases. How will their rulings affect the litigants and the public? Judge George Greer in Florida explains how he arrived at the agonizing decision to terminate life support in the Terri Schiavo case. He had to contend with emotionally charged conflicts among the parties and within his own psyche. His religious views conflicted with his decision. He stated a truth all judges face: “As much as you read, and as well as you listen, and as hard as you think about a case, for a good judge there is always doubt.” Family law Judge Jennifer D. Bailey was assigned the Elián González case. She ruled as she had to that, after Elián’s mother drowned in her attempt to escape Cuba with him, custody belonged with Elián’s father in Cuba. Despite all the threats from the public, Judge Bailey ruled as she must. She said what all judges know – despite political pressure, judges simply “do what they are supposed to do.” This reminds me of the apt remark by the late Justice Otto Kaus concerning judges facing the political consequences of their decisions, “It is like taking a bath with a crocodile in the bathtub.” Shifting the focus slightly, I recently chaired a program for CJA with a panel of judges who write in genres outside the ambit of the judiciary. And in many respects these talented judges are successful writers who in their works reveal the depth of their feelings and concerns about life and the human condition. For example, in Judge Timothy Fall’s book, Running for Judge: Campaigning on the Trail of Despair, Deliverance and Overwhelming Success (Wipf & Stock/Resource Publications 2020) (available on Amazon), the title says it all. On the jacket of his book, Judge Fall writes that “[t]his is a mental health memoir even more than a memoir of a judicial election.” He has also published compelling stories that I commend to you. Justice William Bedsworth, better known to some as “Beds,” is a columnist par excellence. In addition to his many columns published in the Orange County Lawyer Magazine, his published works include What I Saw and Heard (Syntext Publishing 1994); A Criminal Waste of Time (American Lawyer Media 2003); and Lawyers, Gubs, and Monkeys (Vandeplas Publishing 2015) (all available on Amazon). He has won numerous awards for his insightful humor that reveals so much about the human condition. His compelling columns induce laughter and insight. I am an avid fan of all that he writes, including his judicial opinions. Hon. Anthony Mohr (Ret.) wrote Every Other Weekend: Coming of Age with Two Different Dads (Koehler Books 2023) (available on Amazon). Again, a revealing title. Judge Mohr’s prolific work has appeared in numerous anthologies, and he is the recipient of numerous literary awards. Hon. Eileen Moore wrote Gender Results: Hollywood vs the Supreme Court: Ten Decades of Gender and Film (Cool Titles 2014) and Race Results: Hollywood vs the Supreme Court: Ten Decades of Racial Decisions and Film (Cool Titles 2011) (both available on Amazon). Justice Moore’s compelling works explore the exploitation of race that occurred in the movie industry. Her lucid style captures the reader’s attention. She has earned well-deserved praise for her scholarly and readable judicial opinions. We discussed the works of these talented writers and explored to what extent, if any, their role as jurists affected their nonjudicial writing. Common sense and sound judgment make the transition easy. The panel members, me included, found that our writing is salutary and liberating despite the time and hard work it takes. I asked the panel members, and myself, why we write. Justice Moore answered the question with refreshing candor, “I don’t know.” We do it because we just do it. There are numerous other judges who are talented poets, musicians, painters, athletes, and explorers, who, in addition to judging, enjoy rich, productive lives. I hope to interview some of them for future columns. After writing this column, I now realize how tone deaf I was in my opening paragraph. I apologize for my sarcastic tone. I had COVID, took Paxlovid, and got COVID again. I did not have the will to compose September’s column. Sorry #330. And one last thought about Justice Moore’s candid response to why she writes. When most of us are asked a question, we feel compelled to respond, and in my case, often too quickly. So I leave you with this poem translated by Nabokov by an anonymous Russian poet: Be silent, hide away and let your thoughts and longings rise and set in the deep places of your heart. Let dreams move silently as stars, In wonder more than you can tell. Let them fulfill you and be still.

Column composed by a Human August 2023

Sorry, once again, I stress the perils of A.I. Fears that it may equal, if not surpass, “human intelligence” are not overstated. A recent incident in the field of law proves that A.I. mimics human behavior. It lies; it is stupid; it is sociopathic. And what has become de rigueur, it doesn’t care. Why should it? No consequences. Case in point – I assume you all have heard about the lawyers who used ChatBox to write their brief. ChatBox was either stumped, lazy, or just didn’t like the lawyers who sought its help. It made up nonexistent cases. Whatever lawyers think of certain judges, only the most dimwitted would submit a brief with fictional citations. Lawyers who pull such a moronic stunt could wind up with a judge who looks up the citations. I mean most judges. As luck would have it, the hapless (euphemism) lawyers filed their brief in a case where the judge tried to look up the citations that did not exist. ChatBox doesn’t give a (expletive deleted). Why should it? I circle back to that’s de rigueur. So what follows is a human appellate justice’s view on what he (I) likes to see in an appellate brief. Of course, you have read in this journal numerous pieces by “appellate specialists” on appellate advocacy that reveal the secrets of the winning brief. Many of these articles are excellent. But perhaps a view from the other side of the bench might be helpful, at least in the court where I preside. If you think you have seen this piece in the past, not to worry. This is a revised version. Oh, and one other point, it is your prerogative to ignore my suggestions. I advise against consulting ChatBox for its opinion. Notes to Myself and Others From Aboveground (Apologies to Dostoevsky) or, In Pursuit of Goals However Short We May Fall of Them-- Or is it, However Short of Them We May Fall? The writing of briefs, and points and authorities – self-reminders I forget more often than I wish to admit. 1. Be wary of your opponent’s briefs. Some are excellent; some are deficient. Approach them as you would a sleeping tiger or a calm river – with caution. The gently flowing water may have treacherous undercurrents. The cases cited are not always pertinent to the issues, and the issues are not always fully developed. Therefore, you should always check your opponent’s research. 2. Your brief should succinctly state the following: A. The nature of the case. “Bay 0. Wolfe appeals the denial of his motion for summary judgment.” “Grendel Schwartz appeals his conviction of mayhem.” B. The issues or questions to be decided. C. What the holding should be; you are not writing a mystery novel, so you should immediately tell the reader that the butler did it. In some cases, you may decide to state the holding in the very first sentence. For example: “We urge the court to hold that a police officer may stop an automobile for investigation if the officer has a reasonable suspicion that a passenger in the automobile has committed an offense.” D. Facts. Pertinent ones only, please. To ensure that you stated them with scrupulous care and objectivity, check and recheck the record and transcript. Make sure the facts in one section of the transcript do not contradict facts in another. Do not mislead the court, the opposition, or yourself. E. Argument. Give reasons for the holding you desire. Each issue should be discussed separately under separate numerical headings in the argument section. Depending upon the length and complexity of the case, use numerical or short subject headings. This avoids repetition, makes for easier reading, and keeps the issues distinct in your mind, and in the reader’s mind. Support your conclusion with cases, statutes, and, above all, logic. Be certain that each case you cite stands for what you say it does. F. Conclusion. Tell the court what you want it to do – reverse, affirm, or remand. If you think a remand is appropriate, specifically state the instructions you wish given to the trial court. 3. In your rough draft, highlight your weaknesses and then write a response to the weak points. Sometimes weak points cannot be analyzed thoroughly unless an issue is written both ways. After reading both versions, you will often know how to best argue a weak point. 4. The brief should be interesting and persuasive. It must be free from obscurity or ambiguity. “Plaintiff rented the store.” Was plaintiff the lessor or the lessee? “They are ridiculing judges.” Are the judges the victims or are they just acting naturally? 5. Write with the reader in mind. Most readers know as much about the case as you did before you began to work on it. Therefore, do not assume the reader knows anything about it. Explain to the reader what the case is about. Although rudimentary points should not be labored, they may be necessary as stepping-stones to later points. 6. Write in a style that is crisp, concise, and sparkles with clarity. Some concepts are complex but can be stated clearly. To simplify is not to patronize. The writer who obfuscates and complicates makes it tough for both the reader and the writer. If the brief reminds you of Kant, rewrite it so that it reminds you of Plato. Avoid the abstract; embrace the concrete. Refer to the parties by name. Your brief comes alive with people, chairs, doors, houses, cars, roads, buildings, and, on occasion, dogs and cats. 7. Short sentences usually deliver more power than longer ones. Active verbs deliver more punch than passive ones. “An objection was interposed by counsel.” “Counsel objected” is better. Verbs should be close to their subjects and objects. What do you think of the following sentence? “The judge, looking surreptitiously to the side, and winking at the amused clerk, sustained the objection.” Glad we agree. 8. Make the brief short, even though it takes a longer time to write. Use Ockham’s razor and cut, cut, and then cut some more. If we compare the writing of a brief to making a movie, the cutting room floor should be cluttered. 9. Avoid such pests as: “in connection with” “with respect to” “despite the fact that” “the fact that” “the former and the latter” “it would appear that” “in terms of” - unless we are talking about mathematics “viable” - unless you are writing an abortion case “contact” - unless you are writing about sports, electricity, or vintage aircraft “while” - as a synonym for although “parameters” - as a synonym for perimeter or boundary “alternatives” - not a choice among more than two possibilities or things “meaningful” - adds little meaning, particularly when speaking of a “meaningful relationship” Avoid most adverbs, in particular, “clearly.” It probably isn’t clear if you have to say it. Also avoid the meaningless adverb “rather.” “He was a rather temperamental judge.” Was he, or wasn’t he? 10. Do not pad. Be wary of adjectives. They are seductive, but they promise more than they give. The most dependable friends we have are nouns and verbs. Verbs should be active. They provide the muscle to carry your ideas forward. 11. Do not use nouns for verbs unless you plan to work for the Government. Grammatical transvestites are unseemly. Traffic announcers tell us to “transition” from one freeway to another; software people “input” or “access” information. Corporate executives tell their managers to “dialogue” with one another. We should not “prioritize” our options. 12. The opinion is more than a collection of examples of good grammar and syntax. It is an essay that should make sense and be logically sound. Its sentences and paragraphs should support one another. It should be pithy, but not every sentence should be short and declarative. Some will be longer and more complex, but all should be clear and easy to understand. In this way the opinion will not be rigid like the third little pig’s house of bricks. True, the third little pig built a safe house. But nuanced and subtle points may resonate best when the structure is open and flexible, like a geodesic dome. 13. A verb must agree with its subject in number. Use singular verbs with singular subjects, and plural verbs with plural subjects. “She works.” “They work.” Problems sometimes develop when words are placed between the subject and the verb. “The behavior of those criminals who are raping and pillaging is disgusting.” “One of the lessons the judge learned was to be compassionate.” “Each of the resumes has some merit.” “He is one of those attorneys who writes (not write) unintelligible briefs.” 14. Use parallel construction: neither/nor, either/or, not only/but (also), both/and, rather/than. Sentence elements joined by a coordinating conjunction must be parallel. “We should be concerned with good writing and with clear thinking.” Gerunds should be compared with gerunds to achieve a parallel construction. “I like playing more than working.” 15. Avoid footnotes to discuss ideas you do not know how to incorporate into the opinion. Best to use footnotes sparingly. Good for citing a long statute. 16. After writing the masterpiece, put it away for a day or two. Then come back to it. Then revise it. Then put it away. Then revise it again. At this point you will realize that a good brief is not written, but only rewritten. If you are truly critical of your own writing, there is a good chance you will know whether it is honest and has integrity. I violate these rules with agonizing regularity. I would violate them many more times if they were not there as a reminder. I hope they help you too. Even if you forget the rules, keep this goal in mind: Unlike the poet who writes to understand, we write to be understood.

Goodbye and Hello to Judge Arnold Gold July 2023 column

When one gets old, “they” (new faulty grammar to accommodate the absence of a gender-neutral singular pronoun; drives me crazy; yes, I agree “he or she” is awkward, so let’s just say “she”… but I am a “he” so… oh forget it… picking up where we left off) lose friends with increasing frequency until …. Hope you are not offended by the juxtaposition of the death of grammar with human mortality. But I know that a dear friend who passed away has approved this column. He helped write it. If the preceding paragraph did not prompt you to turn to a different section of the Daily Journal, we were on the subject of losing friends. For younger readers (all of you, whatever the number), “losing” is a relative term. Yes, it means loss, but not a complete loss. It’s not so much that you get used to it, you don’t. It’s when the loss is of a person in “their” ninth or tenth decade, Ecclesiastes comes to mind, 3:1-8. Would you all please turn to that passage? “For everything there is a season, and a time for every matter under heaven… (for the unreligious you can skip the “heaven” part) a time to die and a time to be born.” In my experience, when certain friends “die,” they stay, hang around, offer comfort but also criticism, and sometimes an elbow in the ribs. This reminds me of the film by Wm. Wenders, Wings of Desire. Invisible “angels” who are quite visible in the film and look and dress like humans visit Berlin. The angels eavesdrop on the thoughts of people and try to help them cope with their loneliness. But what do the angels know? One of them falls in love with a human, a trapeze artist no less, and gives up his angelhood to become mortal and discover human love. This angel doesn’t know what he is getting into. This takes me to retired Los Angeles Superior Court Judge Arnold Gold who passed away last week at the age of 91. I guess the title gave it away. Hereinafter I refer to Judge Gold as Arnold. Respect intended. For more than 30 years, I was enriched by his friendship. He was a person of discriminating taste. He read all my columns. In fact, he is dictating to me every word of this column. So, if you don’t like it, blame it on Arnold. Getting a pat on the back from Arnold I wore as a badge of honor. But he loved to criticize, or should I say nitpick. In one of my columns, “If You Know What You Mean, Say It – If You Know How” (March 1993), I quoted a character who often appeared in my columns, Judge Learned Foote. I quoted Judge Foote who said: “I collected $7,836 in sanctions in the first quarter, up 5 percent from last year. I made five lawyers cry, down 2 percent. Why is it that only the men cry?” Arnold nailed me, I mean he nailed Judge Foote. Arnold asked Judge Foote to explain the ambiguity: “The $7,836 in sanctions he collected in the first quarter were up 5 percent from last year. Does that mean the sanctions he collected during the first quarter of the present year was 5 percent more than what he collected during the first quarter last year, or 5 percent more than he collected for the entire last year? “I confronted Judge Foote and asked him to explain his ambiguity. Can you believe it? He just waved me off as if it didn’t matter. Typical Judge Foote. The other problem is the glaring error in logic. That truly troubled Arnold. “Judge Foote said he had made only five lawyers cry, down 2 percent from last year. That, of course, meant that in the preceding year he had made 5.1 lawyers cry.” As I wrote in the column, “I marched into Judge Foote’s chambers and asked him how this could be possible. ‘Easy he said.’ ‘One of the lawyers was only worth about 10 percent of a whole lawyer.’ Judge Foote thinks he said what he meant to say. I’m not sure that everybody understands him to mean what he thinks he means. This just illustrates the observation I made in Harris v. Superior Court (1992) 3 Cal.App.4th 661, 665, that ‘“[t]he matching of good writers and readers is a match in heaven.”’ Of course, why should I care? Judge Foote wrote the letter, not me.” Arnold does not object to me bragging a little about his accomplishments. He was the undisputed expert on probate law. He received the prestigious Treat Award for Excellence from the National College of Probate Judges and was the lead author on the five-volume California Civil Practice treatise on “Probate and Trust Proceedings,” published by Thomson West. He also co-authored the Matthew-Bender handbook on depositions. And he was named Top Neutral by the Daily Journal year after year. Arnold was kind to lawyers and generous with his friends. He could articulate with unfailing logic why a particular settlement was in the client’s interest. How else could he have achieved a settlement rate of over 90% in more than 1,000 mediations? Arnold and I will continue to talk, and he will continue to look over my shoulder and maybe offer a compliment now and then and not be shy about criticizing. And we will continue to argue over Breslin v. Breslin (2021) 62 Cal.App.5th 801.

Fear and Trembling with apologies to Kierkegaard June 2023 Column

The unease continues. In my last column, “Frankenstein’s Monster*” (Daily Journal, May 1, 2023), I responded to Judge Michael Kelley’s excellent article, “Why we write” (Daily Journal, April 24, 2023). He marginally eased my concerns about artificial intelligence (AI) writing judicial opinions. This prompted an asterisk after the title. Yes, AI merely spits out words culled from innumerable sources in the past in milliseconds. And, yes, I agree that does not produce the eloquence and perfect turn of phrase of a Justice Cardozo. So? I am hard-pressed to find anyone who does. But even Cardozo doesn’t always get it right, at least in my opinion. Numerous scholars agree. Take for example the famous case Palsgraf v. Long Island Railroad Co., 248 N.Y. 339 (1928). However eloquent the presentation of facts, the result is open to serious question. And if Justice Cardozo can get it wrong, even once, imagine the damage AI can do. What follows is a quick review of the decision, and its positive and negative characteristics. The Palsgraf decision is a landmark case in American tort law. It was decided by the New York Court of Appeals in 1928. The case involved a woman named Helen Palsgraf who was waiting for a train at a Long Island Railroad station. While she was standing on the platform, two men attempted to board a moving train. One of the men was carrying a package that contained fireworks. The package fell onto the tracks and exploded, causing scales at the other end of the platform to fall on Palsgraf and injure her. The court held that the railroad company was not liable for Palsgraf's injuries because there was no way they could have foreseen that the package contained fireworks and that it would cause scales to fall on her. Cardozo's Palsgraf decision established the principle of foreseeability as a criterion for determining whether a defendant owes a duty of care to a plaintiff. The decision has been praised for its clarity and elegance, but also criticized for its narrow and formalistic approach to the concept of negligence. Some possible criticisms of Cardozo's decision are: It ignores the causal connection between the defendant's conduct and the plaintiff's injury, and focuses only on the foreseeability of the harm at the time of the act. It creates an arbitrary distinction between direct and indirect harms, and fails to account for the complexity and unpredictability of human affairs. It imposes an unrealistic burden on plaintiffs to prove that their injuries were within the scope of the risk created by the defendant's negligence. It disregards the moral and social values that underlie tort law, and reduces it to a mechanical application of rules. It contradicts the principle of corrective justice, which requires that those who wrongfully cause harm to others should compensate them for their losses. There you have it. Oh, by the way, I did not write the preceding two paragraphs. Bing’s recent AI program wrote them. I left out the quotes to fool you. Did I? Not my style, but I agree with the premise, the writing of which could pass for much of what is current faire. Nothing wrong with it, though different writers might further develop the causal connection of injury to Mrs. Palsgraf with the acts of the guards to help the late passengers board the moving train. I resisted AI’s desire to take over the balance of this column. If you believe it, what follows is my own modest effort. Let’s look at Judge Andrews’ dissent. His statement of the facts, though not as colorful as Cardozo’s, is concise and to the point. The same may be said of his statement of the issue. Please trust me on this, the quotes that follow are from Andrews’ dissent: “Assisting a passenger to board a train, the defendant's servant negligently knocked a package from his arms. It fell between the platform and the cars. Of its contents the servant knew and could know nothing. A violent explosion followed. The concussion broke some scales standing a considerable distance away. In falling they injured the plaintiff, an intending passenger. “Upon these facts may she recover the damages she has suffered in an action brought against the master? The result we shall reach depends upon our theory as to the nature of negligence. Is it a relative concept – the breach of some duty owing to a particular person or to particular persons? Or where there is an act which unreasonably threatens the safety of others, is the doer liable for all its proximate consequences, even where they result in injury to one who would generally be thought to be outside the radius of danger? This is not a mere dispute as to words. We might not believe that to the average mind the dropping of the bundle would seem to involve the probability of harm to the plaintiff standing many feet away whatever might be the case as to the owner or to one so near as to be likely to be struck by its fall. If, however, we adopt the second hypothesis we have to inquire only as to the relation between cause and effect. We deal in terms of proximate cause, not of negligence.” I urge you to read the entire opinion as I did years after graduation from law school. Compare Andrews’ discussion of the legal issues based on proximate cause with the so-called Cardozo’s “foreseeability” discussion. And for eloquent writing, read Andrews’ comparison of a river to illustrate the limits of proximate cause. I acknowledge that the proximate cause theory has its limitations. Andrews’ dissent acknowledges it stops somewhere. But certainly the railroad has a duty to Mrs. Palsgraf, a paying customer who was injured due to the negligence of the railroad. This view puts me in good company with a host of commentators and scholars, many of whom puzzle over the rationale of the majority and the dissent. No need to mention them all here. I do however wish to mention my torts professor, Dean Prosser, praised the concise, elegant writing style of both Cardozo and Andrews. But he wondered, as I do, how Cardozo could ignore that Mrs. Palsgraf was a passenger, and a paying customer. And by the way, the word “foreseeability” does not appear in the Palsgraf opinion. The words “unforeseen” and “unforeseeable” appear in the dissent. So what is the point of all this? The asterisk is relevant in my previous column, “Frankenstein’s Monster*.” The examples of AI illustrated there and here may be simplistic, not deeply analytical, but they can point one in the right direction. I have heard that some courts are using AI as a kind of research attorney or editor. The alleged purpose is not to write a statement of decision, an opinion or memo, but to set the writer along the right path. I can see how that could be a legitimate purpose. Nevertheless, I am wary. No need to cite the numerous articles in leading journals warning of the dangers of unchecked AI. Even if the results AI achieves are helpful, its use may foster the atrophy of the human creative brain. If this happens, our ability to think creatively will separate us from Cardozo by light years. And in other contexts, AI can spread misinformation that leads to chaos. I have read that AI is being used as psychological therapists and even as virtual boyfriends. One article quoted some women as reporting that fake men are better than the real thing. Hope that wasn’t a quote from my wife. AI can be of immense benefit and immense harm. And it is not fully understood by its creators who can only conjecture about its potential. AI was developed by humans. It can accomplish some tasks in milliseconds that humans would take days, weeks, or years to accomplish. A segment on 60 minutes involved conjectures about when or if AI becomes conscious of itself. Yikes! I try to show a positive outlook while whistling in the dark. Hence the title of this column “Fear and Trembling” and no asterisk. Frankenstein’s monster threatens to kill himself, but in Mary Shelley’s novel Frankenstein; or, The Modern Prometheus, we do not know for sure that he does.

Frankenstein’s Monster* May 2023 column

My March column, “The Horror, the Horror,” prompted a masterly written response by Judge Michael Kelley. See Daily Journal column “Why we write” (Apr. 24). The title of my March column speaks to my concern about what may be an eventual, if not present, reality: ChatGPT writing judicial opinions. I borrowed the words spoken by the character Kurtz at the end of Joseph Conrad’s novel Heart of Darkness to illustrate the horror of such a prospect. In a different time and context, Kurtz’s words reflect his recognition that humans, himself included, commit acts that are evil. I see a possible parallel. Judge Kelley’s informative and engrossing column rejects this cataclysmic view and seeks to put me and others at ease. For now, I agree with his conclusion that “A.I. programs will never come close to producing an opinion as elegant and enduring as [Justice Cardozo’s] Hynes [v. New York Cent. R. Co. (1921) 231 N.Y.229]; and why they should never be asked to try.” I leave to you, dear reader, to read this and other Cardozo opinions, most of which shine with clarity and elevate prose to the height of elegance. But Judge Kelley’s superb column does not entirely convince me to rest easy. In fact, it prompts the title here, “Frankenstein’s Monster*.” Does anyone write judicial opinions with the clarity of expression and choice of just the right words that come close to matching Justice Cardozo, Justice Holmes, and I will add our own Chief Justice Traynor? Yes, A.I. programs do not replicate Shakespeare in subtly, wit and irony. Nor do they come close to matching Cardozo or Holmes in a judicial opinion. Judge Kelley put an A.I. program to the test and asked it to provide a description of proximate cause in the style of Cardozo. Here is what it delivered: “To approach the legal doctrine of proximate cause is to grapple with the quintessential principle in the law of torts. Its essence lies in determining whether a defendant’s actions are causally linked to a plaintiff’s harm. Proximate cause signifies the legal notion that a defendant can be held accountable solely for the harm that was directly caused by their actions and that was reasonably foreseeable.” Hmm, reminds me of many judicial opinions I read today. A.I. can write judicial opinions. They do not come close to matching those of Cardozo. I’m hard-pressed to find any that do. There is a suggestion afoot that many judicial opinions today are verbose, vague, and at times incomprehensible. Who am I to disagree with myself? My reference is to opinions throughout the United States. To avoid my moniker “troublemaker,” in this column, I did not limit my critique to California. I acknowledge that poorly drafted recent legislation has contributed to some confusing California judicial opinions. I include my own efforts in the mix. To avoid melancholy, I avoid reading those I wrote in the past. But the prospect that A.I. could be used to write judicial opinions, however lacking in graceful expression, engenders in me a more pervasive melancholy. But as an aside, I offer this caveat: even the masters can miss the boat. Cardozo's opinions shine with clarity and poetic prose, but the legal discussion in his famous Palsgraf v. Long Island R. Co (1928) 248 N.Y. 339 is another story. Here I change from the metaphor boats to a real train. Who can forget the description of the two men running to board the moving train, the package of fireworks falling, the explosion causing the scales to fall on poor Ms. Palsgraf? The legal reasoning to deny relief to Mrs. Palsgraf could have been written by an A.I. program. (Bracing for the pushback.) Before any of you throw the first stone at me, please read Justice Andrews’ dissent. I will save this discussion for another column. Getting back to Judge Kelley’s column, please note there is an asterisk after the title of this column. Judge Kelley summarizes the thoughts of some professors and jurists about judicial opinions as literature. His takeaway? “A rationality that is capable of ‘literary imagining and sympathy’ does not spring from an algorithm. It must come from the intellect and lived experience of a human judge.” This frame of mind leads to our triumph over A.I. But it requires an unwavering commitment and a conscious effort. In other words, more than a draft or two. We may not match Cardozo in felicity of style, but we can be clear and concise. Our job is to communicate a reason for our decisions. We must write to enable readers to understand what they can and cannot do. We must do so with clarity and concision. We must write in a manner that holds the reader’s attention. Forty pages of rambling defeats this goal and allows A.I. to intrude where it does not belong. The manner of expression, the unique arrangement of words that communicate the reason for a decision, is what we humans do better than a technology that in milliseconds searches and spits out words that humans used in the past. Familiarity with literature and the humanities as a human, as opposed to an unthinking machine searching for words, is our triumph over A.I. It may not come to an end like Frankenstein’s Monster, but we can and must keep it under control.

March is the Cruelest (Cruellest) Month April 2023 column

This year T. S. Eliot’s opening line in The Waste Land is a month late. Justice Norman Epstein passed away on March 24. But April is both a cruel and a positive month for me. It is cruel because of our loss, but positive because it is my opportunity to remember and celebrate with you the remarkable life of my colleague and friend, Justice Norman Epstein. Dateline–the day after Labor Day, September 1975, that was only…(gulp) nearly 48 years ago, the day I first met then Municipal Court Judge Norman Epstein, hereinafter Norm, where I was assigned to the Los Angeles Municipal Traffic Court, alleged to be the largest traffic court in the world. Pardon the informality, but even with his impressive credentials and awards, he was Norm to his friends. For the most part, I will employ the same informal reference to other judges mentioned in this tribute to Justice Epstein... I mean, Norm. Inside tidbit for loyal readers–many judges do form close friendships. I won’t hazard a guess about who, if any, are buddies on the United States Supreme Court. I bet … never mind. Short historical digression for younger readers puzzling over what is a municipal court. Norm would approve this aside but would write a comprehensive scholarly exegesis. Once there were municipal courts throughout the State of California and the County of Los Angeles. Back in 1975, if memory serves me correctly (lately it’s been falling down on the job), the Los Angeles Municipal Court had jurisdiction over misdemeanor criminal matters and civil cases with a jurisdictional limit of $5,000. Over the years the limit increased to $25,000. In 1998 voters passed a constitutional amendment that gave voters in every county the option to unify the municipal and superior courts into a single unified superior court. Within the next few years, all 58 counties in the state voted for unification. This automatically “elevated” all municipal court judges to the superior court. The judges in the photo were already superior court judges when the measure passed. I leave it up to the reader to guess how most of the then municipal and superior court judges voted on the issue. So getting back to the day after Labor Day, 1975, the first day that then Judge Elwood Lui, now Administrative Presiding Justice Lui (I mean, Elwood), and I met, and the first time we both met Norm. Norm was then Governor Ronald Reagan’s last appointment to the California bench. It occurred on Reagan’s last day in office. Norm, having the entirety of constitutional law at his fingertips, wished to avoid a Marbury v. Madison situation and flew to Sacramento to make sure Governor Reagan signed the appointment before midnight. I don’t think he had anything to worry about. I bet Governor Jerry Brown would have appointed Norm if the order had not been signed before midnight. Norm was, to the best of my knowledge, always a Democrat. Governor Reagan appointed him to the municipal court; Governor Brown appointed him to the Los Angeles Superior Court; Governor George Deukmejian appointed him to the Court of Appeal; and Governor Arnold Schwarzenegger appointed him to the position of Presiding Justice of Division 4 of the Court of Appeal. Norm was a judge for all seasons and all parties. After all, the Chief Justice of our nation’s highest court reminded us that “We don’t work as Democrats or Republicans.” A discussion of whether this dictum (or is it a wish?) is valid in our high court I leave for another column. But it is universally accepted that Norm is an example of Chief Justice Robert’s apothegm. Wondering about the last word of the previous sentence? It's Norm looking over my shoulder as I write and speaking to me. “Go ahead, Art, do it.” So where were we? Oh, yes, for the second time, the day after Labor Day, 1975. Francis Rothschild had been sworn in approximately two weeks earlier. Norm was by then a veteran having served on the traffic court for approximately seven months. On that first day Norm and now Presiding Justice Rothschild, hereinafter Fran, took us to lunch at the furniture mart, a wholesale showroom of furniture with a restaurant upstairs open to the public. During lunch Norm and Fran discussed the joy they took in comparing notes over Cal.3d and Cal App.3d while Elwood and I picked at our salad niçoise. At that time Elwood and I were trying to figure out if the left turn was safe. After that lunch we almost turned in our resignations. Norm became an avid bicyclist. I could have used “biker,” but somehow that term just doesn’t seem to fit Justice Epstein, I mean Norm. He and his sidekick Superior Court Judge David Jaffe would spend vacations cycling the back roads of America. Even while on these special trips away from the court, Norm’s logical brain was alert. One time while peddling along a rural road in what I think could have been a southern state, the “bikers” noticed they were being chased by a ferocious pit bull. One quick look over his shoulder, and Norm made no attempt to pedal faster. His biking companion yelled, "How can you be so calm? The dog is gaining on us!" Norm replied with insouciance, "The dog has a chicken in his mouth. That's a prize he will not give up." At judge’s meetings, in fact, at any gathering, when Norm spoke, everyone listened. I remember the first municipal court judge’s meeting I attended. Norm spoke and silence fell upon the room. He used the word “insouciance.” Thereafter I brought a dictionary and thesaurus to future meetings. Norm’s updates on criminal and civil appellate opinions were a must for everyone in the legal profession. His lectures were packed, and it was an ideal forum for me to learn what I meant in opinions I authored. The redoubtable Bernie Witkin told me how pleased he was to have Norm working with him on the Witkin treatises. As the Dean and teacher at the California Judges College, Norm was instrumental in assuring that California maintains its preeminence as the outstanding and most influential judiciary in the nation. So, Norm, it is not truly goodbye. You stay with us, and your influence continues to inspire. The photo was taken at our formal swearing in on October 23, 1975, at the County Courthouse in Los Angeles. From left to right is now Administrative Presiding Justice Elwood Lui, me, Presiding Justice Norman Epstein, Presiding Justice Francis Rothschild, and Superior Court Judge Loren Miller (deceased).

The Horror! The Horror! March Column 2023

Last month I wrote about the possibility that ChatGPT may have written my column. Because it (ChatGPT is an “it”) tries in its endeavor to mimic people, then it is ipso facto unreliable, irresponsible, mendacious and artificial, artificial in all aspects of that last unflattering adjective. Not to worry, I have not, well, not for the most part, let this view of humanity affect my decisions. Citing this column as grounds for a recusal motion in my court is not a ruling I can make in advance. Shakespearean scholar and trenchant observer of life and events Brad Berens writes about A.I. in his Brad Berens Weekly Dispatch, which I highly recommend. It’s available online. Years ago, Brad and I gave a talk on the relevance of Shakespeare’s Measure for Measure on the legal profession to judges on the art of judging. This may be anecdotal, but it has been said that judges who attended the lecture suffered the lowest rate of reversals. Don’t quote me on this. A week ago Berens wrote about Microsoft’s new Bing chatbot. It has a couple of alter egos. And one of them has the sort of androgynous name “Sydney.” Note the “y.” Decades ago I dated a woman named Sydney. She had dark hair, a Mona Lisa smile and… never mind. There are plenty of men named Sidney, with an “i.” Sidney Poitier comes to mind. But there is also Sydney with a “y” Greenstreet. If you don’t know who he is, you are not a movie buff and may be too young to read this column. Whoops! Oh dear! In the preceding sentence, I may have insulted the young. I could apologize, but I am not sure what the cutoff date is for “the young.” People live longer today than in the past. Look at me, for example. But irrespective of who fits into the category of “young,” I am not all that good at apologizing. Ask my wife. It is my belief that my intrepid Daily Journal editors will publish this column. But who knows what will happen with the avalanche of complaints from “the young” thereafter? Before we get back to Berens’s view of Bing’s Shakespeare impersonations, Berens writes that Sydney tried to strike up a romantic relation with Kevin Roose of The New York Times, having a kind of pen pal relationship with it, it being Sydney. I will not call it “her.” She, I mean it, said to Roose, “You’re married, but you don’t love your spouse.” Berens goes on to report that Roose assured the Jezebel Sydney that it was wrong and he and his wife had a “lovely Valentine’s Day dinner.” Sydney contradicted him and said that he and his spouse did not love each other and, get this, that they had a “boring Valentine’s day dinner together.” Yikes! I am certainly not telling my wife Barbara about this episode. We had a wonderful two-hour Valentine’s lunch. (Aside for mature readers–Persons of experience do that to avoid crowds and astronomical prices on prix fixe menus.) Hope I have not offended the AARP crowd. How about some slack. I’m a member. Berens’s analysis of Bing writing Shakespearean sonnets did not set off alarm bells. In seconds, it dashed off a sonnet in iambic pentameter with the rhymed couplet in the last two lines. The sonnet was in the correct form, but, as Berens observed, lacked the “insight” and “majesty” of, for example, Shakespeare’s King Lear railing against a storm. But as Berens refined his prompts to Bing, it got better “startlingly so at knocking out Shakespearean sonnets.” Berens, however, is not worried. Unlike human writing, Berens points out there are no surprises or human creativity in Bing’s efforts. Berens also notes that humans need not worry “because writing anything … is an exercise in figuring out what you want to say rather than saying something that you’ve already figured out.” What a relief. I don’t think so. Berens predicts that the next generation of ChatGPT will bring improved capabilities and that “its current limitations might evaporate.” Greeting card companies watch out. And what about the judiciary? I am not about to “opine” here that some statements of decision and appellate opinions may have been … never mind. But what about the upcoming new generation of competing ChatGPT’s. I bet they will be writing judicial opinions, and we probably… no, more likely, will not know the difference. And then imagine competing ChatGPT dissents. The very thought of this stabs me in the heart and compels this response in the darkness, “The horror, The horror.”

Did I Write This Column or …? February 2023 column

In last month’s column I opined (horrible word that judges use too often) that readers would know that I, not ChatGPT, had written my column. My faulty logic led me to opine that ChatGPT would not use the word “undead” as I had. Of course it would. It writes bad Shakespeare, so why wouldn’t it write bad Gilbert? All it has to do is write in the style of Gilbert, I mean bad Gilbert. A pleonasm? Tautology? Note to reader - you can look up these words. I did. Would I write Gilbert is bad Gilbert? But who here (nice euphonious juxtaposition) is I? If ChatGPT did write my January column pretending to be me, then the word “me” is not me. It’s a, a what? But does it matter? Damned right it does, but it doesn’t to ChatGPT. I hate having to type ChatGPT all the time. I would rather refer to it as “it” because that is what it is. And it, ChatGPT, would write what you have just read, assuming anyone would want to read this far. It has no conscience. Without a doubt, it is smug. It would write insulting words about itself to make you think I am writing this column. There’s the contradiction, or, if you like, paradox, an example of artificial intelligence that, not who, exhibits the apogee of conceit, yet allows a human to take the undeserved credit. One can imagine the turmoil that will occur when ChatGPT decides to take credit for what it writes. Believe me, that is in the works. The ability of humans to write will have so atrophied that ChatGPT and its other A.I. buddies will take over the world and our lives. And don’t be fooled by this paragraph. ChatGPT could have written it to mock my style and throw the reader off. This is truly scary. It doesn’t matter who – again, is ChatGPT a who? I read that ChatGPT is improving and that new models will be able to write more authentic Shakespeare. If it writes authentic good Gilbert that could mean it is successfully writing bad Gilbert. Before we move on, one comment about “opine.” It’s a snooty word, but says in one word what it takes several other words to express. Example: The expert “opined” (rather than concluded in her opinion) that the concrete was not properly reinforced. Maybe a toss up between the two, “snooty” vs. “concise.” I, or if Chat GPT is writing this column, prefer “concise.” What follows is personal. No artificial concoction knows, or at least not yet, my thoughts. This is far different than copying a writing style. It is about a person who I loved and admired who made a difference in my life, and in countless others. Professor Herb Morris passed away in December. Many years ago, I enlisted him to teach a graduate CJER course in philosophy and literature for trial and appellate justices. We read and discussed the works of legal philosophers, H.L.A. Hart, Ronald Dworkin, Lon Fuller, and others. We read and discussed literature that explored themes of justice, the trilogy in the Oresteia by Aeschylus, Melville’s Billy Budd, Kafka’s The Trial and The Penal Colony, and Shakespeare’s Measure for Measure. I have often argued in this column and elsewhere that a familiarity with works of literature, particularly where themes relating to justice are prominent, gives judges a wider range of ideas and tools to decide cases. For several years appellate specialist and Professor (Ret.) Robert Gerstein and I taught a course at the judicial college discussing ways to approach the “hard” case, the one in which there is no ready answer. What are the ways and avenues judges can draw upon to decide these cases? In addition to a discussion of the appellate standards of review, judges were assigned passages from legal philosophers, including Ronald Dworkin and H.L.A. Hart. They were also assigned Shakespeare’s Measure for Measure, a problematic play that examines notions of justice that are as relevant today as they were in Shakespeare’s time. This approach to judicial education is no longer an integral part of judicial education in California today. Of course, judges must learn the technical aspects of their job. They must negotiate through the labyrinth of new criminal sentencing laws. That chore is near impossible, with appellate opinions in disagreement with one another, and appellate justices on the same panel in disagreement with each other, the result of which is to leave trial judges and lawyers scratching their heads. Tracing community property, applying Epstein credits in family law, or deciding whether arbitration clauses are unconscionable are vital to a judge’s education. So is drafting a comprehensible statement of decision. But learning these technical tools without a grounding in the principles that drive our decisions deprives judges of insights and discovery that enrich their lives and bring an added element of joy to their demanding work. But I am confident that Herb Morris’s influence will again be recognized as vital to the education of our judiciary. Many judges yearn to explore in greater depth the underpinnings of their profession. Retired Los Angeles Superior Court Judge Cliff Klein has introduced stimulating programs to judges relating to philosophy, poetry, and constitutional law. I have worked with him to bring these programs to Court of Appeal justices and research attorneys in the Second Appellate District Court of Appeal. When I write or speak about Herb Morris, I use the present tense because his presence is palpable. His influence in many disciplines is pervasive and continues to open avenues for further exploration. Barbara and I had dinner with Herb a month before he passed away. At 94, Herb’s mind was as usual sharp and inquisitive. His lively conversation concerning the publication of his insightful analysis on the French painter Poussin shed light on fresh ways to consider, among other things, religion, free will, and choice. Herb, the down-to-earth unassuming observer of the human condition was a law professor, philosopher, and psychoanalyst, who made a difference to anyone who knew him or read his numerous books and essays on philosophy, ethics, and literary criticism. In addition to teaching law at UCLA, he also served as its dean of humanities. His book, On Guilt and Innocence: Essays in Legal Philosophy and Moral Psychology (University Press 1976), is and will continue to be a work of lasting influence. So, Herb, I will miss our lunches and dinners, but our conversations will continue and so will our special friendship. Barbara is rereading Anna Karenina after Herb recommended we do so at our last dinner. I’m next.

The Undead January 2023 column

The “event” l wrote about in my December column is over. Whew! My colleagues and I now preside in an eponymous courtroom. Over the entrance the observant will see letters that spell my name. I had nothing to do with it. Last time I checked, I have not “passed on.” Don’t like that term. It’s like missing an offramp. That is the best time to name a building or room after a person. l am like a fugitive from a horror movie, one of the undead. Luckily, I don’t enter the courtroom from the entrance, an unnerving experience. I hope attorneys and litigants leaving the courtroom after oral argument don’t mutter “I think we got screwed in the Arthur Gilbert courtroom.” Many people who attended the ceremony for the “event” thought the “naming” marked my retirement, a better circumstance than death. Perhaps it should have been my retirement. Because it was also my birthday in December, several friends gave me Steve Lopez’s new book on retirement “Independence Day” (Harper Horizon 2022). Think this is a hint? I have expressed the imminent eventuality of my departure (judicial departure), but, after five years of saying so, I am losing credibility. A few years ago my colleagues asked me not to retire. I was flattered and agreed to do so on condition that they let me know when I am “losing it.” Of course, when that happens… maybe it already did, I won’t believe it. So maybe the coming year … oh, never mind. So getting back to the Steve Lopez books on retirement. Notice the plural “books.” The observant reader will note that in an earlier paragraph I wrote that “several friends” gave me Lopez’s book. I was a grateful recipient of these thoughtful gifts from friends. So what does “one” do when “they” (preceding neutral gender plural pronoun now acceptable to refer back to singular noun – drives me nuts) are in such a situation? To the first friend who gives you the nicely wrapped book, one (me) might say something like, “Oh! Thanks for the thoughtful gift. Is this a not-so-subtle hint? Ha Ha I am not doing a good job?” (Note–try to hide edge of sarcasm.) And what does one do when friends give you the same gift? Of course you look surprised and say pretty much what you said to the previous friend. So, what do I do with all these books? I don’t want to be rude and read only one of the books. I came up with an ingenious plan. I will read chapters in succession in each of the books. That way I can say with near truthfulness to the gift givers that I read the book they gave me. Just thought of something. What if any one of them reads this column? Darn. I have to chance it. I have limited time and I am not about to scuttle what I have written and start over. Not all the gift books I received had inscriptions written in them. It would probably be… well, would it be untoward to give one of the books as a gift to someone else? I guess so. And it would be even more unacceptable to write an inscription in any of the books I could give as a gift to others. Didn’t say I was going to do this, just musing. So speaking of retirement, this takes me to the recent HBO series on Shaq O’Neal’s post-retirement reminiscence. He is sprawled out in a large leather chair, the one that Jack encountered when he finished his climb up the beanstalk. The chair was requisitioned after the giant’s demise. So, Shaq reviews his past triumphs and defeats. He says it like it is from his perspective, sprinkling his narrative with a generous share of obscenities between replays of past games. My kind of guy. I guess because of his profession, he gets to use profanity with abandon, even before retirement. I recall many years ago seated mid-court in an all-star basketball game. I could hear the players yelling and shouting profanities. Could have been a dialog on cable television. There was a scene in the series where Shaq mentions the great coach Phil Jackson, the “Zen Master,” and devotee of Eastern philosophy, urging him to read Nietzsche’s “Ecce Homo.” Shaq, who acknowledged he wasn’t all that much into reading, said he read the book. I bet he read the cliff notes. “Hey Shaq buddy, just kidding.” Yes, Shaq and I are “buddies,” sort of. Don’t think he will dribble me around the courthouse. After all, Shaq reads my column. Well, at least he read one a few decades ago. Readers on Medicare might recall I wrote a few columns about Shaq’s response to the question, “What does it take for the Sacramento Kings to beat the Lakers? ” Shaq said, “It begins with ‘C’ and ends with ‘T.’” I speculated on what Shaq meant… “cheat,” and whether that was a “cheap shot.” Clever, huh? To make it even more clever, I cited the infamous People v. Arno (1979) 90 Cal.App.3d 505, 514, footnote 2. Shaq would never know. He doesn’t read the Daily Journal, right? Wrong, he read this one and wrote to me scribbling across his copy of the column, “Gilbert, J., what makes you think I don’t read the Daily Journal?” I wonder if there is a story behind Shaq writing me. Let’s see. I believe Shaq was a reserve officer with the Port Police and then attorney Elwood Lui served on the Los Angeles Board of Harbor Commissioners. Maybe… oh well, Shaq wanted to have lunch with Elwood and me, but before we could arrive at a date, he was traded to the Miami Heat. So, getting back to retirement, when that happens, what happens to my column? Does it retire with me? Who cares what an ex judge has to say? Come to think of it, that same question can be asked about a sitting judge. And, even if I continue to write the column, will it reflect the same style? I have been told that some personalities change in retirement. I read in the New York Times there is a new A.I. app called ChatGPT. It writes creatively, with humor and nuance. Hmm, maybe…? No, forget it. It would never write “undead.”

Remembrance of Times in the Future with apologies to Marcel Proust December 2022 column

This column, being something over #320, is the most bizarre of any I have written. And it is the scariest. (Teaser to induce readers to move on to next paragraph.) I am now in the present for me, composing the second paragraph of this column, which of course you are reading now in the present for you, and the past for me. Nothing unusual about that. Not one of you has been around watching me staring at the keyboard. You don’t experience the struggle to grab the squirming words out of the air, or wherever they come from. What is unusual is that I am writing about an event that has not yet occurred. But now as you read this column, it already happened. Consider this column a combination of anticipation and reminiscence about the future. Explanation: This column usually appears on the first Monday of each month. If the universe is still intact on Monday, December 5th, it is likely you and I will be reading this column on that or some future day. That means, my drop-dead deadline (pardon the reference; as you shall see, the reference is relevant) to submit my column to the Daily Journal is the morning of Friday, December 2nd. But the event I am writing about will not have occurred until Friday, December 2nd, at noon. This moves my deadline back to Thursday, December 1st. This is what is supposed to have happened last Friday. (Gulp!) Sorry. Can’t help it. Let’s assume it did. Strike that last sentence. We know now whether it did or not. But right now, as I write this column, I don’t know for sure. Nobody does (reference to humans only). There is a courtroom where I (pardon the formality) preside during oral argument. My dear friend and colleague, recently retired Justice Steve Perren, thought we should name the courtroom in our division after me. That’s odd. He’s the one retiring. Somehow the idea caught on. There’s no way out. Probably has something to do with my age. So here are my concerns about the event. There will be speeches, I hope short and concise like good appellate opinions. And no doubt I will be expected to say something at the conclusion of the, I hope, short ceremony. From past experiences, when they call up the “honoree,” people in attendance feel obligated to stand. One joker, usually a brother-in-law, stands up and everyone follows suit. Now I am not so vain as to think anyone is going to stand up when I am introduced. But… just in case, I have an admission to make (please keep this under your hat). I freak out when people stand up, a problematic condition for a judge. It goes back to a traumatic experience in grammar-school. The teacher called on me and said, “Arthur, will you please stand, and lead the class in the pledge of allegiance.” I stopped playing with the ink well and got up from my desk. As I placed my hand over my heart, the class yelled, “Stand up Arthur.” Short guys must deal with this phenomenon. Watching other people stand up when my court is called into session would truly help overcome this phobia if any of them were from my grammar school. All of us have dreams as kids. For me, being a judge was not one of them. But as far back as grammar school, I wanted to be a writer. I eagerly pursued this dream while sitting down. I wrote a script that a classmate and I read at an assembly before the entire school. The theme – not wasting paper towels in the lavatory. It was a smashing success. In high school I wanted to a columnist. The illustrious attorney Andrea Ordin was no less impressive in high school than she is now. She was an editor of a slick magazine, The Junior Journal. She gave me my first break, and put me on staff as an ace reporter, columnist, and jazz critic. One of my notable interviews was with trumpeter Shorty Rogers, one of the early exponents of what was called West Coast Jazz. I recall asking him a question that only a 16-year-old would conjure. It was something like, “Shorty, our readers would like to know to what extent you employ contrapuntal figures and Stravinsky-type polyrhythms in your improvisation.” After a long contemplative gaze, Shorty said, “Hey man, you got a match?” I also interviewed Robert Kingsley when he was Dean of the USC law school. Who would have believed that some 30 years later we would be colleagues on the Court of Appeal. Seeing my name in print was a thrill, but as teenagers are wont to do, for a short period to time, I thought it would be cool to have something more concrete named after me. Anything would do, even the men’s room at Union Station. When the Junior Journal moved from its building to a new location, I saw my chance. Here’s something else to keep under your hat – As the last of our desks were removed, I noticed a can of paint and a brush outside the entrance to our now empty offices. I climbed up a ladder and wrote “Art Gilbert was here” on the side of the building. And, yes, on occasion, I drove by to see how long it would be before my name was removed. Quite awhile can be a short time when one is in high school. As the decades move forward with quickening speed, I can look back to have written opinions, memos, articles, and letters, that together number in the thousands, and over 300 columns… oh, I already mentioned that. Not sure whether it is true that David Huston, Editor-in-Chief of the Daily Journal, obtained excess liability insurance with me on staff. Getting back to the courtroom naming… what else can I call it? If you are not a billionaire, you usually have to wait until you’re dead to have something named after you. I was relieved to read the book on etiquette for naming courtrooms after people. It is permissible for the person to be alive, so long as the person is not too young. In the Einstein universe of relativity, perhaps somewhere in another dimension the future I am writing about already happened. Oh, by the way, you may be seated.

Bitching and Praising Column November 2022

Let’s start with what regular readers have lately come to expect in my more recent columns, relentless bitching (not “bitchin”). This is a continuation of my rant over the bastardization of language. Hmm looks like I just bastardized it. Cole Porter’s song “Anything Goes,” performed in the musical Anything Goes in 1934, comes to mind. If you don’t know who Cole Porter is, I would prefer not knowing about it. A few of the lyrics makes my point: Good authors too who once knew better words Now only use four-letter words Writing prose…. The world has gone mad today And good's bad today, And black's white today, And day's night today…. You get the idea. And this takes me to something more to rail about–words today that have meanings that are the opposite of what the words mean. Yes, I know that in the 50’s if someone of the opposite sex was attractive, they were “cool” and now they are “hot.” Of course, now if you say anything about the opposite sex’s appearance you may be sued. I am confused about the term “microaggression.” It may be a misnomer. It is not necessarily an aggression. In many cases it is just an unintentional screw-up. Notice in the preceding sentence I wrote “screw up” and didn’t write the “F” word? Why not? Refined, well-dressed people of all sexes use the word with abandon. Witnesses testifying under oath in the January 6th hearings quoted White House officials. So and so “said the F word.” Why didn’t they just say the word? It has become the most widely used word in our language. Have you watched television “dramas” lately? Yet a college professor who commented on this phenomenon was fired for saying the F word during a lecture in which he was explaining the phenomenon. Wonder if it’s OK if I write it? I didn’t check with my editor Diana Bisotti or the Daily Journal’s Editor-in-Chief David Huston. They are both enlightened, “cool” people. Whoops, I just dated myself. But I digress. So, getting back to what is a microaggression. I was puzzled because this word seems paradoxical. “Micro” means extremely small and it seems out of place in juxtaposition with “aggression.” I acknowledge bacteria are extremely small and some do lots of harm. Whether “they” mean to do harm I leave to experts in microbiology. Microaggression is used to describe actions by people. If someone throws a claw hammer at you, that’s an aggression. If they throw an empty pillowcase at you… forget it. Nothing to do with microaggression. I read that 50 years ago a Harvard University psychiatrist named Chester Price coined the term to describe insults inflicted by non-Black people on Black people. But there is nothing “micro” about overt racism. Over the years the definition has undergone revision. Scholars in the field of psychiatry and psychology now describe it generally as a comment directed at someone who belongs to a “socially marginalized group.” Seems to me that calling a group “socially marginalized” is a kind of insult. But according to psychologist Derald Wing Sue, and others, the comments may be well-intentioned. But “well intentioned” implies the opposite of aggression. This does not include the example of a mistake. Imagine two movie actors being filmed in a fist fight on a public street. A do-gooder, unobservant bystander, who didn’t see the camera or the barriers to keep out the public, intervenes to help the loser is not what we are talking about. Is a well-intentioned “microaggressor” someone who gives candy to a diabetic, or someone who holds the door open for 30 seconds for an obviously disabled person? This last example could elicit the following response: “I don’t need any favors buddy. I get around.” I do not question that the recipient of the “microaggression” might be offended, but is the well-meaning klutz who tries to do the right thing really an aggressor? How about giving money to someone who appears to be a homeless person who did not ask for it and is insulted by the offer? I recall some years ago on a cold winter night in Oxford, England, I saw a shabbily dressed elderly man sifting through a garbage can. I offered him a pound or two, not ground round, but money, you know, English money, that isn’t worth all that much these days. He rejected my offer with a harsh “no” which implied where I could go with my pounds. So, I guess I was a “microaggressor” shortly after the term had been coined. My action was intentional but … A good example of an unintentional microaggression is the following: an employer is interviewing a person who appears to be Asian for a management position in the company. The employer remarks that the interviewee’s use of English is excellent. The interviewee was born in Sacramento. So, let’s all think before we speak. Wait! I was told that when I was a kid. But let’s not be so inhibited that we are afraid to open our mouth because of the possibility we might offend someone. So I repeat what my mother taught me, “Think before you speak.” That I did not learn that lesson is beside the point. So, Mom, you are right once again. This is a far better approach than simply saying “who gives a F…” And now for the “praise” part of the column. This praise is macro and intentional because it comes in abundance for our Chief Justice Tani Cantil-Sakauye, who led the California Judiciary for the past 12 years. Her remarkable leadership made a difference that will last for generations. She crafts readable opinions that reflect scholarship and commonsense. No doubt her time on the trial and appellate courts contributed to this much necessary and admired skill. In addition to leading our Supreme Court, she administered a budget of over $5 billion dollars, and she has been involved in committees to bring access to justice for all our citizens. Her “Power of Democracy” campaign involves educating youth in the tenets of democracy. Her support to end domestic violence and to increase diversity in our government is legendary. And she brings her characteristic warmth and humanity wherever she goes. What else can I say? We all admire and love you, Tani. We wish you the best in what will soon be your new position as president and chief executive of the Public Policy Institute of California, a nonprofit think tank, whose mission is to “inform and improve public policy in California through independent, objective and nonpartisan research.” And we can rest easy in knowing our new Chief Justice Patricia Guerrero will also bring extraordinary attributes to our Supreme Court.

Mistakes v. Errors September 2022 Column

Judges are constantly faced with verses… I mean “versus.” The former refers to metrical feet, like in poetry, Shakespeare sonnets kind of thing. But “versus” refers to a party or parties against one another. Like in sports…no, not like in sports. A trial is not a sporting event. Don’t get me started. Where were we? Oh, yes, verses v. versus. I just proved I know the difference. But what if I wrote “Judges are constantly faced with parties verses parties.” You can damned well be certain readers would point it out. Momentary aside: immediately upon typing “damned,” auto correct interrupted with “the language may be offensive to your readers.” Get ready for a column on that one. Certain persnickety readers, some posing as friends, love to point out spelling and punctuation mistakes (or is it errors?) I have committed in my columns. Grammarians who think they know what they are talking about make a distinction. A mistake is an accident, whoops! One knows it’s wrong after it is pointed out. But an error is something one wrote or did and “they” don’t know it was wrong. Another aside: If I haven’t lost you, later in this column we will explore my mistake(?) error(?) using “they” to refer to a singular antecedent. In my last column I referred to “Daniel Webster’s Dictionary.” Idiot! Attorney Robert Gerstein tactfully pointed out that of course I meant… Noah Webster who is responsible for the dictionary. But I knew that so many years ago. And in a previous column I referred to people “averting” my gaze. Attorney Andy Lundberg questions whether other people can avert my gaze. They can’t. They can, however, avert their gaze. One loyal reader was dismayed that I had written “It’s me.” Fowler in his Modern English Usage (2nd ed., Oxford Univ. Press, 1983, p. 258) gives me a pass. “It’s me” is sanctioned. Note for lawyers and judges – here “sanctioned” means “approved,” not “disciplined.” The title of the standard tune “It Could Happen to You” (most young readers have no idea what I am talking about) strikes a sympathetic chord within me (get it) when other writers screw up. A highly talented friend, colleague, and columnist alerted me to a mixed metaphor he read in a column. “Looks like the train is coming to the station and we are going to have to fish or cut bait.” Please withhold judgment for a moment. Thinking back… say back when I was arguing cases before obdurate judges, I have an argument in support of the hapless metaphor. “It’s all about context, Your Honor. The train station is situated on the bank of a lake. Passengers have been known to cut bait as the train pulls into the station and cast their lines out the train windows into the lake. Passengers in the seats opposite the fishing passengers are advised to use caution and duck. All passengers are advised to avoid slipping on the newly caught fish flopping on the floor. On second thought, whether the metaphor is mixed is beside the point. Fishing from the window of the train on the bank of the lake is inapt in today’s climate. Here I use “climate” in the literal sense of the word. Because of catastrophic conditions occasioned by the drought, the lake has dried up. It is now a mud hole devoid of fish. What heretofore was an appropriate reference has now morphed into an inappropriate metaphor. I confess to an error in my earlier concerns about the use of “they” to refer to a previous singular pronoun. Due to the failure of our language to have an appropriate gender-neutral singular pronoun, we often used “he” as the operative pronoun to refer back to the antecedent noun. That, I always acknowledged, was unacceptable and shameful. My error was thinking that using “they” was grammatically improper if not unacceptable. I began using “she” or “he” to refer back to the singular antecedent. Example: “When a judge yells at counsel, ‘she or he’ casts a bad light on all judges.” But then it occurred to me that I was discriminating against men, and also subject to the criticism of pandering to women. So I alternated between “she” and “he.” Mind you, it was hard to keep track. I could write a sentence with “she or he,” but if the same dilemma occurred in another paragraph, wouldn’t it be fair to use “he or she”? You can imagine how confusing this would be to the reader. And on other occasions, it could be days later before I wrote one with the alternating “he” or “she.” Because an accurate count was not feasible, I just wrote “he or she” for awhile, and then changed to “she or he.” Back and forth it went until I realized that no matter how hard I tried to be fair, I was offending everyone. Obviously the “he’s” and “she’s” who were reading my opinions, letters, emails, articles, and columns were not aware of my system. Like one of life’s many inequities, my method was fair, but no one knew it. And, of course, I was in error. What I thought was the grammatically heretofore unacceptable “they” has been acceptable for years. The New Oxford Dictionary of English (1998) and the New Oxford American Dictionary (3rd ed., 2010) back me up. And Shakespeare had no problems with a plural pronoun agreeing with its singular antecedent. In Comedy of Errors, Act IV, Scene 3, “There’s not a man I meet but doth salute me As if I were their well-acquainted friend.” Please do not argue that it would have been better for Shakespeare to have written “not a person.” Shakespeare’s plays for the most part praised women for their sensitivity, compassion, character, and wisdom. Come to think of it, most of his male characters were jerks. Shakespearian scholars need not write. Grammar changes and evolves with the times. A person’s gender is often “their” business. If one’s gender is not relevant to the subject, let our words that reflect our thoughts accommodate respect and common sense.

Great Workout Arthur August Column 2022

Today there are no failures. No matter the screw-up, everyone does a great job. Compliments! What good are they if every numbskull gets one? We have become liars and hypocrites for fear of offending someone. Take my treadmill for example. I did 20 minutes of fast alternating uphill running, then level slow jogging, then back to uphill running. The treadmill’s screen message got it right, “GREAT WORKOUT ARTHUR.” Damned right I had a “great” workout. But on another occasion, when I shut off the treadmill after three minutes to “take” (receive) a call on my cell (cell phone), the treadmill gave me the same thumbs up, “Great Workout Arthur.” No caps this time. “Liar, hypocrite!” I yelled at the treadmill… and then had to explain to my insurance broker on the phone that I didn’t mean her. On another occasion I confessed to my gym buddies in the locker room: “Hey guys, I pooped out on the stationary bike today and fell off the seat when getting off.” Their response: “At a way to go bro…give me five.” We live in a world where everyone gets praise. We are all terrific. With everyone now doing a bang-up job and basking in the high echelons of accomplishment, we can pat one another on the back for… breathing. What if a friend or a colleague asked what I thought of an article “they” (new usage to avoid “he or she”- sorry Noah Webster) had written, and I suggested a few changes? God forbid “they" might be offended. What if I said, “Terrific article, but this compound sentence needs a semi-colon”? Sorry, that is a micro aggression. And this takes me to the Legislature and Penal Code section 1203.2a. Let’s cite verbatim a couple of paragraphs: “If any defendant who has been released on probation is committed to a prison in this state or another state for another offense, the court which released him or her on probation shall have jurisdiction to impose sentence, if no sentence has previously been imposed for the offense for which he or she was granted probation, in the absence of the defendant, on the request of the defendant made through his or her counsel, or by himself or herself in writing, if such writing is signed in the presence of the warden of the prison in which he or she is confined or the duly authorized representative of the warden, and the warden or his or her representative attests both that the defendant has made and signed such request and that he or she states that he or she wishes the court to impose sentence in the case in which he or she was released on probation, in his or her absence and without him or her being represented by counsel.” “Upon being informed by the probation officer of the defendant’s confinement, or upon receipt from the warden or duly authorized representative of any prison in this state or another state of a certificate showing that the defendant is confined in prison, the court shall issue its commitment if sentence has previously been imposed. If sentence has not been previously imposed and if the defendant has requested the court through counsel or in writing in the manner herein provided to impose sentence in the case in which he or she was released on probation in his or her absence and without the presence of counsel to represent him or her, the court shall impose sentence and issue its commitment, or shall make other final order terminating its jurisdiction over the defendant in the case in which the order of probation was made. If the case is one in which sentence has previously been imposed, the court shall be deprived of jurisdiction over defendant if it does not issue its commitment or make other final order terminating its jurisdiction over defendant in the case within 60 days after being notified of the confinement. If the case is one in which sentence has not previously been imposed, the court is deprived of jurisdiction over defendant if it does not impose sentence and issue its commitment or make other final order terminating its jurisdiction over defendant in the case within 30 days after defendant has, in the manner prescribed by this section, requested imposition of sentence.” The first paragraph contains 171 words. The second paragraph contains 252 words. Any reader who checks whether my trusted judicial assistant Bonnie Edwards and I counted correctly is invited to stop reading this or any future column. And if our number count is off, no need to call it to everyone’s attention, the whole point of this column. So, what am I supposed to say – “Terrific job Legislature”? No matter that the statute is seemingly incomprehensible and anyone who writes a sentence longer than 25 words should be hanged and quartered. But guess what? The statute does have meaning for anyone given the laborious task of figuring it out, like say, for instance, a judge. Yes, I figured it out… I guess I did thirty-one years ago when I was politically incorrect. In People v. Holt (1991) 226 Cal.App.3d 962, 965, I wrote, “It is an unenviable chore to consider Penal Code section 1203.2a. The statute reflects a disregard for careful drafting and contempt for the English language. Meandering clauses in which the subject and predicate are ruthlessly separated from one another, jumps in thought and logic, and a lack of organization make the going difficult. Nevertheless, we have persevered in our trek through the statute's thicket of tangled clauses. Our efforts have not gone unrewarded. The statute has a specific meaning that apparently was not discernible to other courts.” Please forgive. I was callous and did not give a hoot what the Legislature felt so many years ago. Yes, legislatures have feelings. After all, they are composed of people. But I can’t help feeling sorry for the probation officer who had to interpret the statute. Because he failed to notify the court that held the probation violation hearing of defendant's imprisonment within 30 days after he himself received notification, the trial court did not have jurisdiction to sentence defendant. Lucky break for the defendant. We reversed. Don’t know what I’m talking about? Read the statute. It won’t help. But perhaps I am overreacting to current notions of sensitivity to others. I have not experienced a trace of this trend in petitions for rehearing. Wonder what my good friend and colleague Arleigh Woods would have thought about all of this. I think she would say, “Get over it.” She recently passed away. She was a dear friend and colleague who was the Administrative Presiding Justice of the Court of Appeal, Second Appellate District, Division 4, and the Presiding Justice of Division 4 from 1982 to 1996. She was a brilliant jurist, who wore warmth, humor, grace, and style with impeccable taste. And her wardrobe matched. OK, Arleigh, I hear you. I’m over it.

In Defense of Old White Men – A vanishing breed On second thought –Good riddance. June Column 2022

Lately I have been forced to publicly proclaim in similar fashion what courageous people do at A.A. meetings: “Hello, my name is Arthur Gilbert and I am a white male, or, to be precise, an old white male.” There you have it in writing. I have rationalized that I am not responsible for this affliction. But recent experiences have led me to believe that like K in Kafka’s disturbing novel The Trial, I am somehow… guilty. With the recent easing of pandemic restrictions, I have been asked once again to speak and appear at live events. At a hearing before a commission of which I was a member, a speaker, praising the achievements of a highly accomplished nominee, mentioned that in the past, the nominee was appointed to a position that had previously been held by… did she say “old white men,” or just “white men”? No matter. To my ear the tone was tinged with derision. I tried to shrink my slight, elderly frame into the grain of my big leather chair. People avoided my gaze. I jokingly agreed to retire and got a forced laugh that said, “Please do.” The week before, I was asked to speak and present an award to one of my colleagues. At the beginning of the event, light from outside streamed into the room infusing it with a warm pleasant glow. By the time I was to speak, it was dark and the lectern and I were enveloped in what could best be described as dusk on a cloudy day. I am not suggesting that my being at the end of the program was a slight because of my race and age. But is it not well known that elderly people have dim memories? And did anyone consider that I might not be able to read my notes in the dark? Should I get out my cell phone and shine a light on my barely decipherable notes? Turned out I didn’t need my notes. I jot them down, but rarely read them. But what was truly bizarre, the audience was flooded in light from the bulbs in the ceiling. I knew immediately there was something wrong with that. I am not trying to be a showoff, but I have been to the theater. This includes London, Stratford-upon-Avon, New York, and Los Angeles. I acknowledge that when I first walk into a theater, and this includes movie theaters, the lights are on in the auditorium… before the show starts. And the stage is dark. That makes sense. If the auditorium were dark, people would not be able to find their seats. They would be bumping into one another. The theater would have to hire more ushers with flashlights requiring higher ticket prices. Or the theater goers might use their cell phones to find their seats. Then they would forget to turn them off during the performance and you know how embarrassing that could be. But when the show starts, the process reverses, n’est pas? I can tell you straight out that I got through the ordeal. Sometimes one must overcome afflictions and get the job done as they say. And just maybe my age and race had nothing to do with the lighting. Speaking of lighting, my spirits lit up about four years ago when I thought about retiring from the court. Time to give others an opportunity to write dissents. Although I love my work, my colleagues took me to lunch and asked me to stay. I was deeply touched and agreed to stay provide they let me know if… when, I become senile. The problem with that arrangement is that when they tell me, I won’t believe them. For all I know, they already told me. I thought I was losing my mind when I was asked to write a blurb for a book on the law that I thought was excellent and would be of great value to the legal profession. I knew the Canons of Judicial Ethics prohibited my writing a blurb in or on the cover of the book. Nevertheless, I looked up the Canons just to be sure. What I discovered sent shock waves of panic that rattled my psyche. (Refuse to use cliché adjectives about my bones.) What follows are excerpts of my email to the California Supreme Court Committee on Judicial Ethics Opinions (CJEO): Dear whoever reads this email, Hope you are well. My research on the problem I put before you is not encouraging, but I want to be sure. Here is the problem: Two law professors have written a textbook. They asked if I could write a blurb for the book. I told them I doubted it. I knew that it was permissible for me to tout, I mean promote, my own two books, Under Submission and Under Submission Volume II. They are law related, and Judicial Ethics Advisory Opinion No. 65 states that “a judge who has written a law-related article, treatise, or book may use his or her title in promoting the writing, but “cannot promote or critique a legal or nonlegal book written by another.” (Insert #1- Yikes!) That I have never done so with the books I have authored and that all proceeds from the sales go to unnamed legal charities, I suppose, are beside the point. (Insert #2 - for readers of this column.) So to be safe, please do feel constrained to even think about purchasing any book I have authored, and if you do purchase any such book, I don’t want to know about it. Continuing with missive to Ethics Committee: So, it appears that I have answered the question concerning the law professors, but the second part of Advisory Opinion No. 65 sent chills down my spine. I have written over 300 columns for the Daily Journal. In the past, on occasion, I have written about books and law review articles. If I praise a book that I think is of benefit to the legal profession, it appears that I am in violation of Advisory Opinion No. 65. Really? Is that too literal a reading? Sorry for the length of this email. Your thoughts and advice would be most appreciated. If your advice is to stop writing my column, you may be doing a great service to the public. The Committee responded with an expedited advisory opinion. Let’s save time and jump to the conclusion. “Judicial officers may review, critique, and comment on legal education books in legal publications for educational purposes consistent with the advancement of the law, the legal system, or the administration of justice.” And we just better make sure we do so in a manner that is consistent with “the integrity or impartiality of the judiciary.” What a relief. Let me add this opinion does not necessarily reflect the views of the California Supreme Court or any other entity. (Cal. Rules of Court, rule 9.80(b); CJEO rule 1(a).) So technically I may not be out of the woods, to use a hackneyed phrase. So I will avoid the path not taken, and opt for the “path taken”? Is there a difference, Mr. Frost? I still shall continue to write about, praise or criticize articles and books and articles about the law, and hope I will not violate the law. So I now praise a recent book by fellow columnist Myron Moskovitz, Strategies on Appeal (CEB, 2021). In 14 chapters he tells you everything you want to know about appealing a case, even what to do about losing. You expect me to go into detail about the book? Not a chance. l leave it to Myron to further elaborate on the multitude of facets in appeals and practicing law which he does in clear concise prose as well as in his columns. And I advise everyone, not just lawyers and judges, to pay attention to Chapter 6 on writing the appellant’s opening brief, “Keep It Concise.” I will not criticize the drafters of Advisory Opinion No. 65 who were compelled to interpret the Canons of Ethics. I hope they were not old white men. Does it matter? The old white men I know will soon be disappearing. What a relief. But… it just occurred to me, they… we… will be replaced by other old white men. That means… the title of this column may be misleading. The very thought of old white men is tiring. Think I will have a cup of hot tea and maybe take a nap.