Wednesday, January 23, 2008

HaveI Couldn’t Done It Alone- Only I’ll take the Credit.

Credit. I’m no different than anyone else. I take it whenever I can. But it makes me anxious. Credit, no matter what type, has its downside. Just ask those struggling to make mortgage payments.

Politicians take credit for their speeches—particularly the ones that go over well. Never mind that seldom do they write their own. In fact, everyone knows they have “speech writers.” Nevertheless, if the speech bombs, the politician, not the speech writer gets the “credit.” Think “nattering nabobs of negativism” was the product of Vice-President Spiro Agnew’s creative mind? (Does anyone remember Spiro Agnew? He was convicted of tax evasion and money laundering.) The credit for the alliteration belongs to William Safire. But Agnew got the “credit” for the remark. Had he gone to prison he may have also gotten credits for good time.

Historians usually write their own books, but not every word on the page always comes from their pen. Some of the few who have become “popular” are so busy cranking out books that they rely on research assistants to draft a paragraph or two, or maybe even a chapter. A brilliant or incisive paragraph earns credit for the historian and continuing employment for the research assistant. But when the assistant gets it wrong, or plagiarizes from another work, the historian is discredited.

This takes me to the “Hollywood writers” strike in the news these days. Can you believe it? The late night comedians rely on writers to pen their witty lines. Imagine, they get laughs for jokes created by faceless writers. Where are they without their writers?

Without a good writer, a comedian can fall on his or her face. Assume a late night host starts out with a joke. “A dog, a parrot and a moose go into a bar.” Then what? How would he finish the joke without a writer? The bartender says, “So what’s the joke?” That is the joke. Get it? If you are asking the same question as the bartender, that means you did not get the joke. But someone has to write the joke, the whole joke, not just half the joke. No writer, no joke. But the “joke” about the dog, parrot and moose that not everyone got had to be written. We would not be having this discussion had the joke not been written. No matter that it would have been better if the joke had not been written in the first place.

What is a joke is the way judges are treated. We judges often get the blame for society’s ills. We are accused of coddling criminals or denying justice, over protecting or under protecting the environment, favoring or being hostile to business or workers.

I suppose that is why it is important for us to take credit now and then. We will gladly take credit for a decision that earns praise. But like the late night comedians, we do not always write every word of a decision or opinion for which we take credit. There it you have it. The secret is out of the bag.

Trial judges do not always draft statements of decision. The winning side is glad to accept that chore. A busy trial judge sitting in a law and motion department may rely on a research assistant to draft a few sentences or a paragraph or two in a minute order.

Appellate court justices have full time research attorneys. And this is where my anxiety comes in. What if the research attorneys joined forces with the Hollywood writers and went on strike? Why would they want to do that? The residuals our opinions generate are emotions, not revenue. And that I share in abundance with my staff. Retired Justice Robert Thompson who co-authored with John Bilyeu, “Law Clerks and the Judicial Process” California University Press (1980) cautions that an over-reliance on law clerks can lead to the “bureaucratization of justice” at the expense of a fresh intellectual development of the law. I do not agree with that assessment . But Thompson may have a point when he suggested that if research attorneys have a hand in drafting opinions, their names should be listed in the California Reports. They could then at least take some of the blame.

But what if the research attorneys out of boredom or perversity, did go on strike? The thought of having to draft every word of every opinion makes me willing to negotiate at the first hint of a strike. But on second thought, perhaps my fears are unfounded. Writers are not always held in high esteem. Was it Samuel Goldwyn who referred to his screenwriters as "the mice" ? Some producers have suggested that television can survive without writers.

Crises fosters innovation. Maybe the Court of Appeal too, can survive without written opinions. The screen writers strike could be a sign that it’s time for the bugle to play silent taps for written opinions. In its place will be unwritten opinions. To those who say a silent bugle and an unwritten opinion are impossibilities I say, “Not.” (In view of the delicate nature of this subject, no research attorney has had a hand in drafting any part of this column.)

My idea just could work. There is a well-known concert hall composition, John Cage's work, “4'33" (Four Minutes, Thirty-Three Seconds). It is a silent piece of music in which a pianist sits at the Steinway on a concert stage and does not play the three movements of the composition. All one hears is the nervous titters and coughs of the audience. Some think the piece is designed to make listeners truly aware of sound. His second composition in this genre, “5’07” I hear is a real show stopper.

My unwritten opinions would follow John Cage’s

model. The opinion, like Cage's composition, would have a title, e.g. People v. Lamont Cranston. In this respect, the unwritten opinion, does not abjure the written word. In civil cases I would state whether the judgment was "affirmed" or "reversed." In criminal cases, the name of the case would suffice in most instances. After all, most are affirmed.

Some might argue that this approach erodes predictability in the law. Perhaps: but is it so predictable now? Retired judges who have entered the lucrative world of private judging argue forcefully to their clients that going to trial is a "real crap shoot." Lawyers would still file briefs, requiring an appellate judge to cut through forests of invective and scorn. She or he will get to the same result that was reached in the past. But now no need to explain it all in a dense convoluted opinion.

It just occurred to me now that I have written most of this column, that I will not get away with filing unwritten opinions. The California Constitution, Article 6 section 14, requires that our "decisions be in writing with reasons stated." I know how picky the Supreme Court can be. It will probably decide that a case name and the word “affirmed” or “reversed” is insufficient to constitute a written opinion. Darn! Jay Leno is writing his own jokes, so if there is a research attorney’s strike, I suppose I will have to write my own opinions in their entirety. Believe me you will know the difference. You won't see a bunch of citations and stilted legal language. Here’s one I wrote as an example.

“Defendant broke into a house and took lots of things. The jury decided he is a burglar. He is. People saw him do it and he admitted to the police he did it. He whines that he is not guilty, the judge hated him, and his sentence to state prison is too harsh. Only a ass would believe that and the law is not a ass.”

It’s short, punchy, and gets right to the point. That is the kind of opinion I might write. Only, I wouldn’t take credit for it.

No comments: