Friday, November 19, 2021

Who’s in Charge?

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

Tuesday, October 19, 2021

My Warranty is Up

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

Wednesday, September 01, 2021

Real to Reel

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

Sunday, August 01, 2021

What’s in a Title? Who cares?

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

Thursday, July 01, 2021

How to Drive James Joyce Nuts

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

Tuesday, June 01, 2021

Revelations III

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

Saturday, May 01, 2021

Revelations II

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