Not to Confuse Terror with Error

Contained within today's column is a solecism.  Can you find it?  Moral question:  Did I deliberately place a grammatical gaffe to see if you (the discerning reader) can catch it, or have I created a protective ruse?  But first an exegesis on the value of mistakes.  

         Our mistakes are salutary.  We learn from them.  I am sure that today Vice President Dan Quayle knows how to spell "potato."  In a similar vein, I have argued there is no such thing as a dumb question.  How else do we learn and improve ourselves, stock our storehouse of wisdom?  It is quite possible my point of view stems from the plethora of mistakes I make and from the many "peculiar" questions I ask on occasion….  O.K., substitute "often" for "on occasion."

         One of my law professors told the class that appellate opinions are about lawyers' and trial judges' mistakes.  Because of my mistakes in law school (one of them may have been going there), I am struck by the irony that for the past 30 years I have been writing appellate opinions.  My law professor's characterization of appellate opinions is not entirely correct.  Question:  Can he be partially correct?  Is that like being a little bit correct?  (This is not the solecism I referred to in the opening paragraph.)  The holdings of many appellate opinions have nothing to do with lawyers' or judges' mistakes.  A holding may be based on policy or an interpretation of statute or case law.  Often that is when the losing side or a law professor ascribes error to the appellate court.  And I can imagine their satisfaction when the Supreme Court agrees with them.

         I admit that on more than one occasion where I have been reversed by the Supreme Court, I calmly agreed with the decision.  And on every occasion where I have been affirmed by the Supreme Court, I enthusiastically agreed with the decision.  One may not like being reminded of his or her mistakes, but enlightenment is of greater worth than the recognition of "being right."  If only I believed this all the time.

         But what about mistakes that are the product of inadvertence or haste?  Those are the ones that can drive you nuts.  And no amount of explaining or excuses gets you off the hook.  And often if you point out the mistakes that others make, they may never speak to you again.  Many years ago I called a colleague in another district and teased him about his use of mixed metaphors in an otherwise well-written opinion.  Twenty years later we renewed our friendship.  A justice, now retired, told me he never pointed out grammatical errors to his colleagues at the risk of offending them.  Better they should be offended and author a better opinion, one in which their colleagues will happily concur.

         What I have said so far applies to briefs, motions, writ petitions, letters, and even a column.  Some of my loyal readers gleefully pour over my monthly offerings searching for misplaced modifiers, spelling mistakes, factual errors, grammatical slips, and lapses in coherence and clarity.  None are shy about pointing them out to me.  I have waged a reasonable defense when appropriate and have acknowledged error when my back was to the wall.  But it seems the more I own up to my blunders, the more I unwittingly encourage my readers to ferret out more of these wayward pests to drop on my doorstep.  I cannot help but compare this ritual to my cat bringing home a decapitated mouse, which he deposits on the bed.  "Hey guys, look what I caught."  Nevertheless, I publicly disclose these gaffes so that we all profit from them.  

My dear friend, my colleague, my buddy, the ever perspicacious Justice Nora Manella nailed … I mean, wrote me about an indefensible error I made in my last column.  And just imagine, together we have taught legal writing to attorneys.  I wonder if she will consent to teach with me in the future.  If so, I bet she will demand top billing.

         Justice Manella writes in her e-mail, "I was surprised to see your column drawing attention to the 'error' in the use of the objective, rather than nominative, version of the first person singular pronoun ('It is I' v.'It is me')."  Parenthetically I concede this technical error, but defend it.  This phrase is used so commonly that even Fowler begrudgingly acknowledges and tacitly accepts its use.  "Who's there?"  "It is I" sounds so stilted.  I prefer, "No sweat, it's just me."  And Fowler puts me in good company.  He points out that "It's me" has distinguished ancestry.  "Shakespeare wrote All debts are cleared between you and I, and Pepys [wrote] Wagers lost and won between him and I."  (Fowler's Modern English Usage (2d ed. 1983), Oxford University Press, p. 258.)

         But the "It is I" nit is not Justice Manella's main point.  Her e‑mail continues with her puzzlement over my recognition of the "It is I" issue, while "at the same time," I committed "another error in the same column."  She writes, "I refer specifically to the first sentence of paragraph seven."  Here she quotes me:  '"This all brought home to me that some of the most successful attorneys I know are those that have developed skills and insight into other disciplines.'"  She then critiques.  "'[T]hat'?  Say what you will about lawyers, surely your friends are not inanimate soulless automatons, but sentient human beings who deserve to be collectively referred to as 'who.'"

         Of course she is right on.  She continues with a tongue-in-cheek escape clause, "Then I realized--ah hah--he's just baiting us again, hoping that sticklers (sticklettes?) like me will find yet another nit to pick.  OK, I plead nolo to taking the bait.  Very clever of you, though." 

         Of course I did not deliberately place this grammatical error in my column.  The sentence in which it appeared replaced a sentence that was awkward and confusing, but one in which "that" was properly used.  Just minutes before the column went to press, I called in to my hapless editor the replacement sentence with the offending "that."  He is absolved of all responsibility. 

         My new offending sentence, unlike its predecessor, is clear, but grammatically incorrect.  One can say "so what?"  It is an annoying fly speck on an otherwise clear windshield.  I would like to get a pass, but no dice.  The cliché about haste comes to mind.  Judges, lawyers and columnists should keep this in mind when drafting … anything.

         In the opening paragraph, I told you I have deliberately inserted a grammatical error in this column.  The first five readers who notify me of the intentionally placed mistake will receive a copy of my book Under Submission.  E‑mail me at arthur.gilbert@jud.ca.gov or e‑mail The Daily Journal on or before October 5, 2012.  The arbitrary decision of the judge, that's me, is final and there is no appeal.  Justice Manella is disqualified from participating. 

         Oh heavens.  I just thought of something.  What about the dozens of grammatical errors other than the one I have intentionally placed in this column?  This involves the moral issue also raised in the opening paragraph.  That issue could be of greater importance than a solecism here and there.  What do you think?

A Time to Improvise

         “We blew them away in Chicago.”  So said Maestro Gary Greene, Esq., as he led his recently formed Big Band of Barristers to win First Place as the best lawyers’ band in the country.  Who knows … maybe in the world.  Just the day before that, I "blew it" in my August column.  But first let's talk about the band.

         The 18-piece swing band performed at the Chicago Art Institute in a competition sponsored by the American Bar Association at its annual convention in Chicago last month.  The band had to be good to win an election in Chicago.  I suppose playing “Chicago” didn’t hurt.  In two sets lasting 45 minutes each, the band caressed, enticed, pleased, tickled, mesmerized, and seduced the audience, who danced, cheered, rocked, and, most importantly, voted.

         The big band sound was brought to an appreciative audience through the hip arrangements of Jerry A. Ranger.  The tunes included “Easy Street,” "Stompin' at the Savoy," "Body and Soul,” "Jump Town," "Ballin' the Jack" ‑ sounds reminiscent of Count Basie, Benny Goodman, Artie Shaw, and Duke Ellington.

         That I am the piano player in this august assemblage of talented lawyers gives me license to take a one-eighteenth pride in the band’s accomplishment.  It was significant considering Gary Greene brought us together a mere six months ago.  And, yes, we recorded a CD, which is in the "mixing" stage of preparation for release.

         The band truly swings.  Its impressive array of legal talent is also a collection of talented musicians, many of whom had professional careers in music.  The drummer Jerry Levine, a partner at Holland & Knight, and the bass player, Robert Hirschman, a business lawyer and litigator, were on the road with top recording artists and bands before they went to law school.  We all knew one another when we were attending law school, and since then we have played together.  That's what kids do when they are having fun. 

         The band includes such lawyers as Joseph Di Giulio, alto sax; David Schorr, baritone sax; John Snell, trumpet; Gary Urwin, trumpet; Mark Eisenberg, trumpet; Alexander Plitt, trombone; Marc Sallus, trombone; Barry Goldberg, trombone; and William Hochberg, guitar.

         This all brought home to me that some of the most successful attorneys are those who have developed skills and insight into other disciplines.  Recently Gary Greene and I joined legal scholar Howard Miller and the redoubtable trial lawyer Tom Girardi on his radio show "Champions of Justice" for a stimulating discussion about this phenomenon.  A strong liberal arts education, with insight into literature, philosophy, and the arts, makes for an informed lawyer who accomplishes more for the client, more for the profession, and more for the community.  Jerry, the drummer, mentioned to me that the attention to detail and focus required of him as a musician has been invaluable in his legal practice.  And successful litigators and musicians know there is a time to think, a time to let one’s natural talent lead the way, and a time to improvise.

         What?  Now you want to know how I blew it in my last column?  I was hoping you would forget.  My column does generate e‑mails and personal letters, some even signed, and, on occasion, some with positive comments.  The ones that receive a big response are often not those that deal with monumental issues ‑ recent threats to the independence of the judiciary or the decline in professional ethics.  Cats, on the other hand, elicit a big response.  Some of the toughest litigators are the biggest suckers for their cats.  Some even admit they get on the floor with their spoiled felines, scratch them behind their ears, and speak to them in the voice of a countertenor.  So do I. 

But what prompt the most e-mails are errata.  How my faithful readers love to catch errors.  In one column, I wrote, “It is me.”  A lawyer wrote me that he was shocked that I could have made such a blunder.  True, "I" is the subject and "me" is grammatically incorrect.  I acknowledged his point, but then pointed out that no one says, “It is I.”  Fowler’s Modern English Usage points out that common usage allows for “me,” and that “I” sounds stilted.

         Unfortunately, I do not have an easy out from the error in my last column, which generated a mini-avalanche of comments.  I had written that I was in my "seventh" decade.  Of course this was wrong.  I am in my eighth decade, just like the 23-year-old is in her third decade.  That I would rather be in my seventh decade is no excuse.  I thank my readers for their attention to detail.  At least no one complained about the philosophical point of the column.  

         And this takes me back to music.  This time I draw upon the avant-garde composer John Cage.  His composition "4.33" consists of a pianist entering the concert hall and sitting down at the Steinway Grand.  He sits there for four minutes and 33 seconds not playing.  The point of the piece is to make the audience aware of the ambient noise around them, the nervous coughs and titters from the audience.  I thought about writing an opinion like that ‑ four and one-third blank pages.  Law professors would have a field day with it.  And no telling what the Supreme Court would do.

         Better yet, I should have written my last column in Cage’s style ‑ no words, just a blank column.  Then, I would not have made my error.  Cage however made a good point about error, which I recently read in The New York Times.  He said error is simply “a failure to adjust immediately from a preconception to an actuality.”  With that comforting thought in mind, I think I will listen to the Miles Davis album "Kind of Blue."

Do Not Praise Me—Please… Unless I Truly Deserve It

         I read about the discovery of the Higgs boson.  It is as comprehensible as a mortgage-backed securities case.  Einstein explained how gravity works through his theory of relativity.  Higgs boson, I think, explains or at least helps scientists understand how the universe works.  If there were no Higgs boson, there would be no mass, no anything, no us.

         I applaud the scientists for their momentous discovery.  And I praise them for their detection of “dark matter” which is reputed to make up most of the universe.  Just look at the state of the world and this discovery is not all that surprising.

         The Higgs boson discovery, and the date on which it occurred, July 4, 2012, inspired me to search for a principle that explains our moral universe.

         The boson particle is minutely small, yet it was discovered.  In similar fashion I seek to explore the small choices we make every day, the choices that explain and reflect who we are and who we choose to be.  I leave to others to explore the big life-and-death choices most of us never have to make, whether to risk one's life by rushing into a burning building to save lives or by diving into a turbulent river to save a person from drowning.

         It is ironic, if not eerie, that I embarked on this quest because of an incident that occurred on July 4th, the very day of the Higgs boson discovery.

July 4th - I ran, jogged, crawled, the annual 10K-5K race in Pacific Palisades.  I have “run” this race since its inception 35 years ago.  It’s not an easy course.  The “switchbacks” from Sunset Boulevard uphill to the polo field at Will Rogers State Park are grueling, especially if, like me, you are in your eighth decade.  With the passing years, my “time” has been progressively slower.

         But out of the 3,000 or so runners, damned few in their 70’s run the 10K.  To accommodate Father Time, I have “run” the 5K for the past several years.  This year I thought about taking a shot at the 10K.  My knees pleaded with me to drop the idea.  They presented a petition supported by my appendages and organs threatening to boycott such an attempt.  My brain took the petition under submission and opted to make the decision where the 5K wimps, I mean runners, turn back to the finish line, but where the 10K runners forge on for the next 3.2 miles.

         My brain is the most fickle, obstinate organ in my body.  It drives me and everyone else nuts. As soon as I started the race, my brain knew the 10K was not an option.  I could have immediately communicated this decision to my anxious knees, but I waited for the turnaround point to make the definitive decision - “We will do the 5K.”  So I finished the 5K in a little over an embarrassing half-hour.  But for the senior 70’s, the time was not disgraceful.  I waited for my younger jock friends to finish the 10K.

         We looked up our times.  One of my friends won a medal.  And what do you know?  I came in second for my age group.  They give medals to the top three in their age group.  The medal I had won a couple of years ago for coming in third would have company with my new medal.

         At the award ceremony, I climbed the stage at the call of my name and accepted the medal which the judges placed around my neck.  I hammed it up a bit, posed for the photo, and gleefully left the platform.  

         It was on the second or third step off the platform that my glory evaporated with the sweat on my forehead.  The announcer said something like, “And congratulations again to the winners of the 75 to 79 age group.”  But that is the group I will be in next year assuming I live that long. 

         My friends were patting me on the back.  Apparently they did not hear the announcer.  They had to restrain me from going back up on the stage where medals now were being given to the 100 to 105 age group.

         In desperation I ran into the nearby gym and found an official.  I told him I thought I had been awarded a medal that I had not earned.  He looked up my name on the computer.  He found it and immediately congratulated me.  “Good time for a guy born in 1932,” he said.  I told him I was born five years later.  “My parents had no intention of having a kid in the middle of that depression.”

         I removed the medal that hung around my neck and handed it to him.  I asked him if he could find the person who had come in third in the 70 to 74 age group, the age group in which I should have been, the age group in which I, in fact, finished 9 out of 19.  He found the guy who came in fourth in the 75 to 79 age group before I became disqualified.  That person would now receive a medal as the third place winner; the third place finisher would now be second.  I was so relieved.  I felt like I had decided a case that corrected an injustice.

         The hubris that had dissipated from deflating my earlier discovery began to experience a Lazarath-like rebirth, as the official praised me for my honesty and integrity.  Just as I was about to say “Aw-shucks,” hubris went down for the final defeat.  I thanked him for his kind words, but said that I was not deserving of praise merely because I told the truth.

         “Perhaps,” he said, “but few people these days would have turned in the medal.”  Hubris once again tried to raise its moribund head, but I kicked it back down, and then began to take pride in that accomplishment.  This could go on infinitum.  The official and I wished one another a happy Fourth of July, and I, Mr. Middle-of-the-Pack, went home.  I would have much preferred the praise I would have earned if I had come in second.

         This incident got me thinking about judicial decisions.  On occasion judges receive praise for a “courageous decision.”  I would hope that judges decide a case the way they think it should be decided according to the law.  In some cases one could argue that an appropriate break with precedent is courageous.  But even in such a case, the judge is ruling in accordance with guidelines and principles. 

         There are superb decisions, but I hesitate to call them courageous.  A judge who makes an unpopular decision with the public may be reviled.  The experience is not pleasant, but the judge knows she or he is simply doing what the job requires.  Los Angeles Superior Court Judge Anthony J. Mohr is a talented writer of fiction.  In his story “Regarding Hercules,” Judge Mohr brilliantly explores this phenomenon in the July 2012 issue of Advocate, Journal of Consumer Attorneys Associations for Southern California.

         But a judicial decision motivated only to win public acclaim earns the judge a meaningless, undeserved medal.  Trial and appellate judges usually have the opportunity to correct an inadvertent error, to turn in a medal not earned.  This opportunity is available to all of us in the legal profession.  To be conscious of our choices makes it possible for judges and lawyers to win deserved medals of recognition with the public.

         I think I just found the principle I was looking for.  It applies to all people.  It is the succession of small moral choices we make each day that make up the composite of who we are.  It leads to the recognition of our true selves from which we can draw satisfaction, not from other people’s perception of us.

         Having said this, I, like a true scientist, am still skeptical.  I cannot be certain that my principle applies in all situations.  Keeping in mind that absolute rules rarely work, it may be wise to consider my principle together with another principle expressed by Henry David Thoreau:  “Do not be too moral.  You may cheat yourself out of much life.  Aim above morality.  Be not simply good; be good for something.”

The Illusion of Independence

In two days it will be Independence Day.  But lately I am plagued by this nagging fear that the majestic adjective preceding the noun may be an illusory description.  However jaded I sound, my dismal outlook is not surprising.  What else can you expect from a judge concerned about judicial independence?

          I always had this notion that despite the tension between our three branches of government, the judiciary, like the other branches, is independent.  But this independence is not absolute.  The judiciary receives its funding from the legislative branch, and both branches have often argued about how much funding is enough.  But despite occasional skirmishes, there was never a doubt that the courts would exist and do their job.

          This was my unshakable perception.  An article in The New York Times on Sunday, June 24th, entitled The Science of Illusion, by Alex Stone, created fissures through the certainty of my perception.  The article points out that our visual perception of reality lags a fraction of a second behind what we see.  This enables the adroit magician to dupe you into believing he has placed a coin in one hand, which he hasn’t, and astound you by producing the coin in the other hand.  A skilled conjurer plays on a person’s “cognitive bias” to astound, delight or trick.

          Scientists are using some of the magician’s tricks to study our perceptions and the decisions we make that flow from them.  Experiments have led scientists to reach disturbing conclusions.   Reality and our perception of it are not always the same, and this leads to a lack of awareness about how we arrive at many of our decisions. 

For example, subjects were asked to decide which of two jams they prefer. After the subjects chose their favorite jam, through sleight of hand, the jams were switched, so that the subjects thought they tasted the original jam on a second taste test.  Apparently influenced by their original choice, the subjects invariably chose what they had considered the less favorable jam on the second taste test, even though the jams had dissimilar flavors.

          This would be a good test for all of us, and judges in particular.  It alerts us to be aware of how faulty the premises upon which we make our decisions can be.  And this takes me back to what could be my faulty perception about judicial independence.  Certainly the judicial branch carries out its responsibility to decide cases that often have important consequences for the other branches.  But that assumes the courts are open to fulfill their constitutional mandate.

          A popular song from a Broadway show in the 1920's was titled "Yes! We Have No Bananas."  So yes we have no money to sustain government as we knew it in the past, and large budget cuts are necessary.  And yes worthwhile programs are being dismantled causing great suffering among some of our poorest and most vulnerable citizens.  And yes, without doubt, the courts must bear their burden of the cost cutting even though the judiciary’s budget is less than 3 percent of the total budget.  The judiciary has dramatically cut the CCMS program, halted numerous court construction projects, and laid off countless staff.  And specific court reserve funds are being used for current expenses.  But the impending closure of civil courtrooms constitutes a serious threat to the judiciary’s existence as an independent third branch of government.

          In Shakespeare’s Henry the VI, Part 2, Jack Cade, a rebel who seeks to overthrow the king and the established order, instills fervor as he addresses an unruly mob.  A butcher yells, “First thing we do, let’s kill all the lawyers.”  I have seen this famous line enshrined on the wall of more than a few lawyers’ offices.  I suppose they were trying to convey they are tough advocates who will fight for the client’s cause at all costs. 

          But, in fact, the butcher’s comment is a brutish recognition of the importance of society’s legal institutions to resolve disputes in courtrooms instead of in the streets.  Without a full functioning system of justice, society faces anarchy.  I do not suggest that the closure of many civil courtrooms throughout the state will plunge us into anarchy, but it will have serious far-ranging consequences.  It will greatly increase the sense of hopelessness many citizens feel in the current economic climate.  Many defendants facing likely economic sanctions for a variety of civil misdeeds, whether they be large corporations or single individuals, whether they be in family law court, probate court or small claims, will have no incentive to settle, or to resolve their cases in arbitration.  The cynical rhetorical question is “Why should they?”  The sting of a righteous lawsuit is greatly reduced when the trial, if held at all, will be in the distant future.

          I have heard much about the so-called Great Depression in the 1930’s.  My parents graphically described what life was like then.  As bad as things appear today, my second-hand impression of what it was like in the 1930’s leads me to conclude we are far better off today than we were then.  Yet, even back in the 1930’s, anecdotal reports from people who are still with us today tell me that the courts were still open.

          Courts make every effort to defer to the other branches.  They seek to resolve cases on narrow grounds and seek to fairly interpret legislative intent.  This deference must work in the other direction as well.  Let us hope the ultimate funding solution for the courts will take into account the necessity that the courts remain open. A magician’s sleight of hand will not work.  Let us all take another look at the judiciary's budget so that the executive and legislative's perceptions align with reality, and that strawberry jam is not mistaken for peach.  Happy Fourth of July.