Monday, December 07, 2009


When I left court the day before Thanksgiving, I said goodbye to my Cuban friend, Roberto, our security guard. We hugged and wished each other a happy Thanksgiving.

The day after Thanksgiving, when I arrived with friends at the restaurant at which I had made dinner reservations, the maitre d asked me in a friendly tone, “Who are you?” I am sure my immediate response was off-putting. I said, “I’m nobody! Who are you? Are you nobody, too?” I quickly realized this was a good way to lose the dinner reservation, so I quickly apologized and blamed my response on Emily Dickinson. He did not seem upset and asked if she would be added to our party. I told him that she was a 19th Century American poet who wrote a poem entitled “I’m Nobody.” I then recited it for him:

I'm nobody! Who are you?
Are you nobody, too?
Then there's a pair of us — don't tell!
They'd banish us, you know.

How dreary to be somebody!
How public, like a frog
To tell your name the livelong day
To an admiring bog!

He liked the poem and asked again if Emily would be joining us. I told him I did not think she would be able to join us, but promised to send him a copy of the poem. He sat us at a good table.

You may be wondering what this poem has to do with Thanksgiving and Roberto. The simple answer is: everything.

This poem speaks to me, not because I think I’m nobody. I mean, I do have some body. Wait, that did not come out right. I mean, I am some body, I mean somebody. Still does not sound right‑‑either way.

My point is simply that at times I realize I am nobody special. Sorry, I know this is getting tiresome, but it still does not sound right. It reminds me of the term we learned in law school, “negative pregnant.” It implies that most of the time I feel like I am somebody special, and only now and then, when I acknowledge I am nobody, do I feel kinship with Emily. But that is not the case at all.

I have concluded that Ms. Dickinson’s seemingly self-deprecating pronouncement about who she is, “nobody,” does not stem from one or more public incidents in her life. For example, had she, like me and my colleagues, experienced a “reversal” by the United States Supreme Court or even a few by the California Supreme Court, she would not conclude she was “nobody.” She might wonder how the High Court justices could be so wrong, or take comfort that the United States Supreme Court’s decision in Nollan v. California Coastal Commission (1987) 483 U.S. 825 was five-to-four.

And had the Supreme Court “affirmed,” I believe Ms. Dickinson might conclude, as have I, that the affirming justices would feel as much admiration for me or her as would a bog for a frog. I think Ms. Dickinson’s “nobody” paradoxically is the unique special “somebody” who she, who we, who you, truly are, and not the public “you” who might have a title or apparent indicia of success. Ironically, I so admire Ms. Dickinson, that, for me, she is both somebody and nobody.

And all this relates to Thanksgiving and Roberto. He and I are about the same age. I had been to Cuba in the early 1990’s, and I wanted to know how he had survived the revolution. I prevailed upon the reticent Roberto to tell me about his life. Over several months, he related to me a compelling story that taught me what Emily Dickinson was talking about.

In 1959, Roberto was a young man in his early 20’s, living with his parents in Cuba. He was not political, but had the misfortune at that time to be a cadet in the Cuban Air Force Academy when Castro’s revolution took place. A few days before the Bay of Pigs invasion, he and thousands of others were arrested and taken to a castle near the center of the city. He survived each day on water and one meal of beans and rice. The weeks dragged on, but, every few days, some detainees' names were called over a loud speaker. For whatever reason, these detainees were immediately and unceremoniously released and told to go home. It was apparent that most detainees had no idea why they had been arrested or why they were being released. Roberto speculated that the authorities did not know what they were doing, but thought that, because he had been in the Air Force Academy, he had little chance of being released.

After two months in detention, Roberto got a lucky break. The authorities called the name of a friend of his that he knew had already been released weeks earlier. He answered, “Here,” and they let him go.

Roberto hid at his parents’ house for a few days, and then left with a friend who arranged passage for them to a small island off Cuba. He spent several months there and formulated a plan with several families to put together a small flotilla of boats to head for the United States.

The departure date had to be moved forward when they learned that Castro's brother was coming to the island the next day. They were not prepared to leave, but had no choice. Within a few hours, they tied ten boats to one another and headed out to sea in the middle of the night. After a day or two, a sudden storm tore the boats from one another. They were adrift with enough provisions to last only a few days.

For nine days they floated aimlessly at sea with little food or water. During that time a young woman on board gave birth to a baby boy who miraculously survived. Just when they were losing all hope, a ship from the Cayman Islands appeared on the horizon and rescued them. The U.S. Coast Guard picked them up and restored them to good health. Our government granted him asylum. It was heartening to hear him tell how kind and supportive the Coast Guard officials were to the "boat people."

Roberto lived for several months in what came to be called "Little Cuba" in Miami. He eventually made his way to California where he and his friends lived in a rooming house on Vine Street across from the American Federation of Musicians, the musician’s union. I then lived in Hollywood with my parents, just a few miles from the musician’s union. I remember the opening of its new building in 1950 when my parents took me to hear a concert at the union hall. Ferde Grofé conducted the orchestra in his composition, “Grand Canyon Suite.”

I think that was the time I decided it would be “cool” to be a musician. In 1960, when Roberto found a place to stay across from the union hall, I was agonizing over whether I should go to law school or be a jazz pianist and starve to death. I often drove past the union hall and dreamed of hanging out with the other “cats” and playing in jam sessions. In fact, at that very time, Roberto, on the front steps of his rooming house, was listening to the music wafting across Vine Street.

Roberto worked hard, learned English, became a skilled machinist, and was able to bring his parents and sister to the United States. To keep busy, Roberto now works at the court.

While Roberto struggled to learn English, I struggled to answer the impossible questions my law professors put to me. While Roberto was looking for work, my parents plunked down the astronomical sum of around $200 for admission to law school at the University of California. While I wrestled with a workable notion of freedom, having witnessed the stultifying conformity and political witch hunts in this country during the 1950’s, and then experienced the tumultuous excesses of the 1960’s, Roberto had to flee the stifling repression of Castro’s dictatorship. Roberto recently survived another challenge, his battle with cancer.

This brings home to me that throughout our lives, in heat and frost and seemingly at random, we come upon paths taken and not taken. Luck and sometimes a glass of milk and a cookie play a significant role in the choices we make, whether to take this path or that one. But, as Louie Pasteur said to me one night over coffee, “Luck favors the prepared mind.”

A skilled and successful lawyer argued a case in my court a few months ago. In the middle of the argument, he turned into a Gatling machine gun and began asking me questions in rapid succession. I automatically began thinking of answers until it dawned on me something was amiss. “Wait a second,” I said. Something is wrong here…. Give me a minute…. I’ve got it. I ask the questions.” Everyone laughed. For the moment, I was the somebody who asks the questions. But I knew I was nobody. And I suspect that the sharp-witted lawyer knew he too was nobody.

At this past Thanksgiving, and at unexpected times throughout the year, I give thanks that I am nobody. And I give thanks that I am friends with Roberto, who is so special because he is somebody and nobody.

Monday, November 16, 2009


"A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law…. Its immortality no more confers on it political power, or a political character, than immortality would confer such power or character on a natural person.” So wrote Chief Justice John Marshall in Trustees of Dartmouth College v. Woodward (1819) 17 U.S. 518, 636.
John Marshall’s sentiments may have been on Justice Sonia Sotomayor’s mind in her debut appearance at oral argument at the U.S. Supreme Court in the case, Citizens United v. Federal Election Commission. The issue before the court was whether the campaign finance law limiting corporate donations violated a corporation’s First Amendment rights. Judges "created corporations as persons, gave birth to corporations as persons," she said. "There could be an argument made that that was the court's error to start with ... [imbuing] a creature of state law with human characteristics."
And Justice Sotomayor may have found a like mind in Justice Ruth Bader Ginsburg who said, "A corporation, after all, is not endowed by its creator with inalienable rights."
Thought-provoking comments like these do not necessarily indicate how a justice will vote on an issue, but the justices raise a good point. The attributes corporations have as persons are created by statute. Corporations can own property and sue and be sued, but they can’t sue for emotional distress or loss of consortium. Why? Because they really are not persons. They are simply substitutes for persons, sometimes.
And this got me thinking about my, I mean our, two cats. Some people can’t stand seeing other people, particularly those without children, fawn over animals. They contemptuously refer to these animals as “children substitutes.”
My wife, Barbara, rejects the notion of cats as child substitutes. “They are simply cats.” My response: “So why do we fret about them and attend to all their needs?”
I think it boils down to this. Just as a corporation may be treated like a person for some purposes, so may a cat be treated like a child for some purposes. But we all know that a corporation is not really a person, and a cat it is not really a child. I mean you don’t burp a kitten. You may play ball with it, but you don’t take it to a ball game.
And, if you are a little crazy, you may have a birthday party for it when it is one year old, which translates into around seven human years. Then you can go crazy deciding who to invite‑‑ Other neighborhood cats? A few small dogs? An eccentric neighbor or two? And what about presents?
Even the nitwits who throw parties for their pets figure out the whole thing is a farce when they wind up buying all the presents. (Parenthetic tip: Cats hate practical presents that benefit their owners. Collars and kitty litter are out. Catnip or a toy to moisten in their spit is preferable.)
Recently a journalist with apparently nothing to write about sought to interview professionals about the difficulty of raising children and attending to their professions. Somehow she got my name. The journalist thought a story about a presiding justice and his children would be of great interest to the reading public. She called me at a time when I was feeling particularly close to my cats, I mean, our cats. Barbara has often reminded me that they are “our” cats, not mine alone. That is true. In fact, I think she is their favorite.
I agreed to the interview and suggested to Barbara that, because the cats are “ours,” she should participate. She looked at me in what I would charitably call an expression of disbelief, and declined. She rejected out of hand my cat-corporation comparison. I decided to be interviewed alone, but assured Barbara that I would refer to the cats as “our” children. She said that would not be necessary and extracted a promise that under no circumstances would I mention her name. Ladies and Gentlemen of my readership, you are instructed to disregard the name “Barbara,” and not to consider it in your discussions, deliberations, evaluations or thoughts about this column.
The interview took place at a posh restaurant on the exclusive “Westside” of Los Angles. The interview began over an endive salad with blue cheese crumbles, walnuts, grapefruit slices and a subtle vinaigrette dressing. It was concluded before dessert. What follows is my best recollection of the interview:
Journalist- So how many children do you have?
Me- Two.
Journalist- How old are they?
Me- (a pause‑‑not to be confused with paws‑‑sorry, couldn't help that) Around 20.
Journalist- Around 20?
Me- You get busy; you lose track. Let’s just say 20.
Journalist- (a quizzical look on her face) O.K…. Around 20. (a pause) What is the date of their birth?
Me- I can’t really say. We got them a few months after they were born.
Journalist- (brightening) So you adopted them?
Me- Yes, you might say we did.
Journalist- So they are twins?
Me- No, they are brothers.
Journalist- (about to pursue the matter, but thinking better of it, moves to a new topic) What are their names?
Me- Tatum and Powell.
Journalist- They sound like last names.
Me- They are. I named them after two of my favorite jazz pianists, Art Tatum and Bud Powell.
Journalist- Are your boys musical?
Me- I wouldn’t say so. But one likes to sit on the piano when I play.
Journalist- Describe them to me.
Me- Well, they are frisky, curious, and they are black.
Journalist- Black? (pause, not sure how to proceed) Were they adopted from Africa?
Me- No, their parents live in the U.S.
Journalist- What do you know about their mother?
Me- Not much. I was told that she gave birth while living in an empty lot next to a freeway off-ramp.
Journalist- (heeding her inner voice to develop another line of questioning) What, with your professional duties, have you and your wife been able to devote sufficient attention to your sons?
Me- We have done our best. They seem happy and carefree.
Journalist- The optimism of youth. Your sons are in their 20’s. Do they have romantic relationships, girlfriends, boyfriends?
Me- Not a chance.
Journalist- Not a chance?
Me- They have limited contacts with other….
Journalist- (interrupting) You are a strict father.
Me- I am just concerned about their safety.
Journalist- I appreciate that, but you can only protect them so much.
Me- I suppose that’s true. I shouldn’t be that concerned. After all, they are fixed.
Journalist- Fixed in their ways?
Me- Yes, you could say so, but at least they have no interest in the opposite sex.
Journalist- (getting red in the face and opting yet again for another line of questions) What are the things you like and dislike about your sons?
Me- What I like is that they respect the house and the furniture. And they sharpen their claws and teeth elsewhere.
Journalist- You mean they have their priorities in place.
Me- Yes. But their proclivity to pass back and forth in front of me is disquieting.
Journalist- Why would that be of concern?
Me- It brings bad luck.
Journalist- How so?
Me- Well, they are black.
Journalist- (becoming apoplectic) To… to imagine… that you… you, of all people, are a racist.
Me- A racist? What are you talking about? I just have this silly superstition thing that I am trying to deal with. I‘ll get over it.
Journalist- I must tell you that I’m dismayed to learn that you are a horrible parent without a clue how to raise a child.
Me- What do you mean? Our sons are well fed. They receive love and affection even when they don’t return it. Why, we even let them sleep with us. And on cold nights they crawl under the covers.
The journalist slapped her napkin down upon the table. I thought this was a good time to change the subject. I asked her what she thought about First Amendment rights for corporations. Without saying a word, she forcefully pushed her chair back, got up from the table and strode out of the restaurant. I had my dessert and coffee alone, and picked up the check.

Thursday, November 12, 2009

Tiny Pools of Perspiration

The headline smacked me in the face. Despite Money Woes, Judges Train in Luxury. (Daily Journal, August 11, 2009.) A thousand tiny pools of perspiration dampened my forehead. The pools overflowed and the rivulets cascaded down the craggy crevices of my face. (The two preceding sentences appeared in a draft of an opinion I wrote on the issue of retraxit. For some reason my colleagues refused to concur unless I deleted the sentences. So I thought I would use them here.)
I had already made my plane reservation. The next day I was scheduled to leave for the Dolce Hayes Mansion Resort in San Jose to teach a class with Justice Perren at the Judges College. How could I fly to San Jose and teach at a posh resort while the state teeters on the edge of bankruptcy? But it was too late to cancel my ticket without a penalty. When I arrived the next day at the opulent hotel at about 11:30 a.m., I didn’t see any judges. They were all in class diligently pursuing their daily studies from 8:00 in the morning to 5:00 in the afternoon to become more proficient in their profession.
My investigation confirmed what the article had acknowledged. The rate was a mere $110 per night which included the use several meeting rooms. Try and get those amenities at Motel 6 for that rate. But during the short one-hour lunch period, the judges told me how the story may have been passed to newspapers. The strands of my thinning hair stood at attention. A few days earlier, a "mole," posing as a judge, had infiltrated the college and “nosed” around asking questions. He pretended to be just another student judge hanging out with the new judges during breaks between classes. One student judge became suspicious when the faux judge said to him, "Someone told a friend of mine that the hearsay rule is dead. Do you think that's true?"
No one was sure whether the uninvited guest was a reporter. Sorry, I just used an out-of-date term. Today they are called “staff writers.” Does that mean they “write” the news rather than report it, or are the two synonymous? Ben Hecht’s play, The Front Page, which opened on Broadway in 1928, was about newspapers and "reporters" in days gone by. The play tells a riveting story about a capital case and the wise-cracking reporters covering the story who worked out of City News Bureau of Chicago. Reporters were cynical and tough-minded. Every detail of a story had to be thoroughly checked. If your mother said she loved you, the rule was, check it out. No doubt the term derived from their mission to accurately report the news. But I digress.
Suppose the "mole," let's call him an investigative journalist, was sued for something scary like defamation or invasion of privacy and wound up in court. I bet he would expect the judge hearing his case to be competent, fair, unbiased, conscientious, knowledgeable, industrious, thorough, scholarly and respectful ‑‑ just some of the traits the JNE Commission considers important in its evaluation of nominees for judicial office.
No doubt these thoughts were not on his mind. He was looking for an exposé. He did not find one. Despite the headline, the Daily Journal article accurately "reported" that the California Rules of Court require new judicial officers to attend the college and the bids were solicited more than a year ago. (See Cal. Rules of Court, rule 10.462.) True, the resort was nice, but the rooms were inexpensive. And the judges worked hard for two weeks learning about evidence, civil and criminal trials, family law, and a multitude of other subjects taught by veteran judges. The newly appointed student judges, like their predecessors who have been attending the college for over four decades, will become the outstanding jurists for which California is well known. They will be highly skilled in their task to decide a multitude of cases for litigants seeking justice.
But the article about the Judges College highlights the concern over expenditures during a budget crisis. Some judges critical of the Administrative Office of the Courts' budget and its decision-making process have voiced their opposition to court closures. They argue that cuts should be made in other quarters, namely, the huge bureaucracy of close to 1,000 employees at the AOC. This, in turn, drew criticism from the Chief Justice who questioned the motivation for their opposition. But it appears that these judges have agreed to take a voluntary pay cut to proportionally match the mandatory cuts for court employees whether the courts are open or closed.
During governmental budget crises, there is no shortage of views about where best to make cuts. Our Legislature was at an impasse for months over the issue. I am sympathetic to the judges who wish to keep the courthouse open at all costs. After all, the courts are here to serve the public. But the same can be said about numerous programs that serve the public that have been discontinued during this unprecedented budget shortfall. Wherever a budget cut is made, there will be a legitimate argument that some other cut should be made instead.
I hope that in the future criticism will be expressed openly and respectfully without insults and invective from either side for those expressing the other point of view. Some judges I interviewed for this column expressed the belief they may suffer repercussions for candidly offering their opinion about budget cuts. They pose the hypothetical that a few judges may not be able to take a voluntary pay cut because of house or medical payments, college tuition for their kids, or other financial concerns. Will their names be published? I hate to say it, but that may happen even if they have never expressed a view in their life. Some staff writer somewhere may just want to publish a list. Oh dear. I didn't give anyone an idea to do this, did I?
I spoke with a number of judges about this column and, out of an abundance of caution, promised not to disclose their names. But they all wanted their names to be mentioned. One outspoken judge said he would take the fall for everyone else. But I decided not to mention any judge's name. I don't even want to mention my own name. This is not because anyone can or will suffer retribution for speaking out on a budget issue. But an open, frank discussion about budget cuts is itself bound to have frightful consequences.
For example, one judge I spoke with suggested that during this credit crunch the Judges College should meet for just one intensive six-day week. That is a great money saving idea. But, oh no, that could mean my class could be cancelled. You don't think that writing this column will result in my class…. Forget you have read this column. Don't talk about it. Anything you remember about it, keep it under your hat. I can feel it. A thousand tiny pools of perspiration are beginning to form on my forehead.

Tuesday, August 04, 2009

What Tangled Webs of Words We Weave

A long time ago. A really long time ago, when I was a practicing lawyer, that’s how long it was, I enrolled in a Keogh plan. Not so long ago, it was worth something. Why would a young, carefree bachelor (wait a minute, strike the word “carefree”) want a Keogh plan? It might have had something to do with an admonition from my contracts professor in law school at the beginning of the semester. He cautioned that those searching for certainty would best not enroll in law school. At the time the warning seemed counterintuitive. The law was supposed to provide certainty and predictability. But, as I read judicial opinions, I became more and more certain of the law's uncertainty. This well could have stemmed from the uncertainty of my ability to comprehend some of these opinions, or was it the uncertainty inherent in language?

I thought that perhaps I had mastered the uncertainty of language when I tried to make sense of Penal Code section 1203.2a. To give you a taste of what I was up against, here is the first sentence of the statute, all 177 words:

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.

Got it? That paragraph is a piece of cake compared to the third paragraph, which I do not have the heart to quote. Suffice it to say, it did not make sense to me on the first read. But my intuition told me that meaning lay hidden in
1203.2a's forbidding density. Want to know what I thought of all this back in 1991? See People v. Holt (1991) 226 Cal.App.3d 962.

Just in case you are not rushing to call up the case, I will share my comments, despite it being unbecoming to quote one’s self. "It is an unenviable chore to consider 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." Holt, at p. 965. I persevered in my "trek through the statute's thicket of tangled clauses." I took on the fearsome first sentence and wrestled with its mind-numbing language. I then struggled with other unwieldy sentences and miniaturized them, or, if you will, cut them down to size.

This herculean effort allowed me to pin section 1203.2a's gangly shoulders to the floor so that I could wrest from it meaning, after which I needed a rest. (Sorry, couldn’t resist.)

To once again quote myself, "Our (a sop to my colleagues who concurred) efforts have not gone unrewarded. The statute has a specific meaning that apparently was not discernible to other courts." Holt, at p. 965. That last sentence did not win many friends in those "other courts." And some colleagues in subsequent decisions rejected my interpretation. But a few years later, the California Supreme Court, in a masterful display of erudition, saw it my way. In re Hoddinott (1996) 12 Cal.4th 992. The statute concerns a defendant who has been placed on probation and is committed to prison for another offense. The court that placed him on probation has jurisdiction to impose sentence under certain conditions concealed, I mean specified, in the statute.

Please, it is unnecessary to register your admiration for my unflagging efforts. It's all in a day's work.

But my insecurity about uncertainty remains imbedded in my DNA. And this takes me back to my Keogh plan. It had grown over the years, until recently when it took a nosedive, bringing home to me that sound financial planning (an oxymoron) can still lead to uncertainty. If that wasn’t enough, the geniuses from the financial group who invested my funds in a variable annuity account recently sent me a letter titled, “Supplement to the May 1, 2009 Prospectus.” The letter informs that the following paragraph replaces a paragraph in the Option 1 section of my prospectus. The enlightening paragraph states:

If rebalancing is required, the contract value in excess of 30% will be removed from the Limited Subaccounts on a pro rata basis and invested in the remaining Non-Limited Subaccounts on a pro rata basis according to the contract value percentages in the Non-Limited Subaccounts at the time of the reallocation. If there is no contract value in the Non-Limited Subaccounts at that time, all contract value removed from the Limited Subaccounts will be placed in the Delaware VIP Limited-Term Diversified Income Series subaccount. We reserve the right to designate a different investment option other than the Delaware VIP Limited-Term Diversified Income Series as the default investment option should there be no contract value in the Non-Limited Subaccounts. We will provide you with notice of such change. Confirmation of the rebalancing will appear on your quarterly statement and you will not receive an individual confirmation after each reallocation.

The last two sentences are understandable, albeit, not comforting. But I am willing to bet the seeming gibberish in all the other sentences has something in common with the 177-word sentence in Penal Code section 1203.2a. These impenetrable sentences actually mean something. All I have to do is take the time and patience to decipher their meaning. But first I must read the paragraph in the Option 1 section of my prospectus. Lots of luck finding that. Nevertheless, I think I can gather the meaning of the paragraph by once again relying on my intuition, but here I can do so without enduring the exhausting battle of section 1203.2a. Yes, I think I have it. I lose money.

This all proves that judges' work is not pretty. We must ferret out meaning from perplexing statutes and abstruse appellate briefs. (I leave for another day the task facing those who seek to divine the meaning of appellate opinions and trial courts' statements of decision.) We do not seek praise or a pat on the back for our efforts. I have already alluded to this earlier. It is our job. It is why we get paid.

Speaking of pay, neither do we seek plaudits for our willingness to take a cut in pay to help reduce our state’s budget deficit. That job I leave to our legislators. I would advise them to simply wrestle the budget as I did section 1203.2a. Oh dear, it just occurred to me. They drafted section 1203.2a.

Thursday, May 28, 2009

What's in a Name? Everything.

Last week I was driving home from a luncheon in Palos Verdes. I took the Harbor Freeway north. Please notice I did not say the "110." Everything was fine until I took the transition road to the Century Freeway west. Please notice I did not say the "105."
I have little to say about people who use numbers in place of names other than this: like vampires, they have no souls and suck the life blood out of our language. And also please note I did not say, "I transitioned" to the Century Freeway west. A perfectly healthy noun should not be transformed into a mutant verb.
To make matters worse, the sign next to the transition road labeled the road with the unimaginative "interchange." Despite this shortcoming, there was something refreshing about the sign. It has a name, not a number. It is not "Interchange 39." No, this "interchange" bears a name, the name of a distinguished judge who sits on the Ninth Circuit Court of Appeals. The sign reads: "The Judge Harry Pregerson Interchange." I know and respect Judge Pregerson, but, I have to admit, I am a bit envious. The only thing named after me is my trash can. And I erased my name from the container because a judicial protection officer said it was not wise in this day and age to have my name so publicly displayed. I thought that advice reasonable until some wise guy suggested it should also apply to my opinions.
I can understand how courthouses can be named after prominent judges, lawyers, and politicians who have made significant contributions to the cause of justice. Several names in the Los Angeles area come to mind: Stanley Mosk, David V. Kenyon, Alfred J. McCourtney, and my colleague, Steve Perren. There is also Clara Shortridge Foltz, Ed Roybal, and Ed Edelman. And let's not forget the Mildred L. Lillie Law Library. But a freeway "interchange"?
Through my research I learned that Judge Pregerson earned the distinction of having an "interchange" named after him because he presided over the lawsuit challenging the construction of the Century Freeway. When the case began, Judge Pregerson was a federal district court judge. During the trial, he was appointed to the Ninth Circuit. Nevertheless, he continued to try the case and see it to completion. Good for him. No new judge should have to jump in the middle of that mess and get up to speed. And it would be unthinkable to everyone, except the side that ultimately lost, to declare a mistrial and start all over again. It doesn't take a genius to conclude that without Judge Pregerson's decision there likely would have been no Century Freeway for some time to come.
I wondered why they didn't name the whole damned freeway after him instead of a measly "interchange." Further research supplied the answer. The freeway was already named after someone. It is officially known as the Glenn Anderson Freeway. Glenn Anderson was the congressman representing the South Bay who fought to have the Century Freeway built.
Official names given to freeways and "interchanges" do not mean all that much. If I had asked instructions on how to get from Palos Verdes to downtown Los Angeles, do you think a gas station attendant would say: "Take the Glenn Anderson Freeway to the Judge Harry Pregerson Interchange"? Not a chance, particularly when today we don't have gas station attendants. Would the guy sitting behind the bulletproof glass in his sealed enclosure know the answer to my question? Of course not.
Nevertheless, I think it would be nice to have even a portion of a road named after me. I don't expect anything so magisterial as a freeway, let alone a transition road, but how about a stop sign, or maybe a curb? The Presiding Justice Arthur Gilbert loading zone would do. But, the way we name things these days, it would probably have a number in some bureaucratic register: "Loading Zone #349, aka, the Presiding Justice Arthur Gilbert Loading Zone." I would prefer it be a passenger loading zone where people, not cartons of suppositories, are "unloaded" (another word I hate). I would like my passenger loading zone to be in front of a prestigious building. I can just see the dispatcher who hails the next taxicab at LAX (I mean Los Angeles International Airport) for the Ambassador from Ghana. "Please take His Excellency to the Presiding Justice Arthur Gilbert Loading Zone at the Beverly Wilshire Hotel."
To get such recognition, I have to have decided a significant case. Wait a minute! Speaking of Beverly Hills, it just occurred to me that I have as much a claim as Judge Pregerson to be named after a byway. He has his case. I have mine. In Friedman vs. City of Beverly Hills, 47 Cal.App.4th 436 (1996), I wrote the opinion that upheld the right of the City of Beverly Hills to give preferential parking to residents. Think the City Council would go for the "Justice Arthur Gilbert Preferential Parking Zone"?
But it is hard to buck the tide in favor of numbers over names. The battle was lost years ago. Before he went into politics, our feisty Senator S.I. Hayakawa lost the fight against the phone company who scuttled enchantingly named telephone prefixes in favor of numbers. The San Francisco-based Anti‑Digit Dialing League simply could not connect. And we lost such charming names as Hillside, Exbrook, Crestview, Poplar, and Murray Hill to area code numbers.
But in many cases it is appropriate to hide names to protect privacy. Jurors are designated by numbers. In dependency and juvenile cases, California Rules of Court, rule 8.400(b)(2) provides that appellate opinions refer to the parties' last names by their initials. The reporter of decisions argues that this approach does not provide sufficient protection and that we also should use initials for the first names. When the first name is unusual, the court rule sanctions that approach. But if we use this method in all cases, the opinion will read like a badly written law school hypothetical. Aren't they all?
This practice could even spread to the judiciary. Lawyers might go for it. If judges are known only by their initials, lawyers would have no reticence criticizing the judges' misperceived deficiencies. Query: Should we use both or one initial? It is a tough choice for me. If I use the initial of my first name only, I could be confused with Hester Prynne. If I use the initials of my first and last name, I could be confused with the Attorney General. Affirming a 105-year prison sentence in a criminal appeal and signing it "A.G." might seem biased. At times I feel as estranged from our impersonal world as was Franz Kafka. I think I will follow his lead and write a novel about the evil that permeates our world. The first sentence will read, "Call me Arthur G." Mmm… maybe we should drop the G.

Monday, February 02, 2009


Observant readers of the Daily Journal have noticed that my column has not appeared in the last few months. In November of 2008, my wife, Barbara, and I took an around the world odyssey to glimpse the wonders of the world. My colleague Justice Richard Mosk and his wife, Sandy, persuaded us to join them and 80 other inquisitive types who, like us, did not see the economic crises coming when they signed up. The plane was a private 757 jet, the interior of which was reconfigured with 88 first-class lush leather seats. So November was shot, and then December was spent sleepwalking in the fog of jet lag. The fog sat on silent haunches, but did not move on until January.
I could tell you about the “House of the Sun” at Machu Picchu; the towering moai of Easter Island; snorkeling off the coast of Australia at the Great Barrier Reef; the elephant ride around Angkor Wat in Siem Reap, Cambodia; the spiritual aura of the Jokhang Temple in Lhasa, Tibet; the stunning beauty of the Taj Mahal in Agra, India; the giraffes and zebras stopping by our van for a visit in the Serengeti National Park in Tanzania; the colossal grandeur of the Temple of Karnak in Luxor, Egypt; the walk through the gorge known as the Siq in Petra, Jordan, where one comes upon the intricate façade of the Treasury, the temples and brilliantly conceived dams and waterways built by the Nabateans more than 2,000 years ago; or the bewildering maze of cobblestone alleyways, as they were hundreds of years ago, twisting and turning in all directions in the Medina of Fez, Morocco.
But I won’t. A more edifying story concerns the relationship between me and Fred, my backrest. It was similar to that between Tom Hanks and “Wilson,” the volleyball, who (yes, “who” is the appropriate word) was Hank’s best friend on a deserted island in the film "Cast Away." As the story unfolds, discerning readers will detect the principles of negligence, and issues of excusable neglect and guilt bubbling below the surface.
Our tour was scheduled to leave from Ft. Lauderdale, Florida. But to get to Florida, we flew steerage class to Miami from LAX, we being my wife and my friend, Fred, who gave much needed support for my lower back. Fred was there to prevent my back from "going out," which could render me incapable of climbing the 350 steps of the Potala Palace in Lhasa, Tibet, or of surviving the lurching of our van as we accelerated to avoid a charging elephant in Tanzania.
To ensure that I would not forget to take Fred from location to location, I wrote in the first page of my travel journal - "DO NOT FORGET FRED." We landed in Miami, and I grabbed my "things." To be specific, my windbreaker, carry-on bag, and, of course, Fred.
We disembarked and squinted in the glare of the terminal where the Mosks were waiting for us. First class disembarks first. I placed my “things” on a dark-colored chair and excused myself to use the restroom. I returned and grabbed my "things" and we proceeded towards the exit. At the end of the terminal was an elevator that opened onto a platform where we boarded what appeared to be a subway car that transported us along tracks to the baggage area.
The Mosks accompanied us to the baggage area even though they had no luggage to collect. Out of an abundance of caution, Richard, known for his carefully crafted opinions, sent his luggage on the week preceding our trip to the hotel in Ft. Lauderdale. Months earlier, he had cautioned me: "Should the airline lose your luggage, you and Barbara would be in big trouble without luggage for a month." (The foregoing sentence is the expurgated version.) However horrific this would be, gathering all that was necessary the week before departure, rather than the night before, was a task beyond my capability. After several warnings, I said, "Richard, don't worry." (Another expurgated version.)
Yet, the Mosks accompanied us to gather our luggage at carousel #23. We had planned to share a cab for the half-hour drive from Miami to Ft. Lauderdale. We waited and waited; our luggage did not appear. A young lady wearing an American Airlines uniform announced in an indifferent tone, while she popped her gum, that there would be no more luggage arriving on that flight. I deserve congratulations on the manner in which I conducted myself after her insouciant announcement. I did not actually strangle her. I do not believe the virtual strangulation played out in exquisite detail in my mind's eye counts as even a misdemeanor. I also had the presence of mind to say in a cool, quiet tone, before Richard could utter a word, that I appreciated his not saying, "Didn't I tell you so ----." Dear reader, I leave to your discretion what word to place in the blank.
It was close to midnight and I suggested to Richard that he should go on to the hotel in Ft. Lauderdale while we tried to straighten out the luggage problem. "Are you sure?" he said as he grabbed Sandy's arm and walked out of the terminal.
As I seethed over my misfortune, I took solace in the knowledge that we had the entire next day in Ft. Lauderdale, time enough, I hoped, for the airline to locate our luggage. Minutes later, the young baggage lady announced with a barely discernible lilt in her voice that in fact more baggage from our flight would be arriving shortly on our carousel. Our bags emerged from the cave of darkness and landed side by side on the carousel which took them on the short journey to our eagerly outstretched hands.
We dashed out of the terminal, but the Mosks had already left. We hailed a taxi and loaded our luggage in the trunk and our other "things" in the back seat. So what if we had to pay the full fare and not share it with the Mosks? Things were working out. Just as the cab began to pull out from the curb, I realized things were not working out. Fred was missing. The episode that immediately followed this discovery I dare not relate. I am not a large person, but I became King Kong on the tower of the Empire State Building.
Let's just leave it at this: Barbara talked the cabby out of calling 911, and the back of the cab is now in reasonably good condition. I did make a significant contribution to the 2009 edition of the Dictionary of Obscenity and Taboo. The cabby suggested I go back to the baggage area to see if I could locate Fred. I leapt out of the cab and raced back to carousel #23, now empty, but still snaking around on its journey to nowhere. The young woman was still there chatting on a cell phone and still popping her gum. “You didn’t happen to see.…” I said, but then caught myself. Of course she hadn’t. I had left Fred in the terminal. His color is dark brown and I had set him on a dark brown chair. He had blended in with the chair. How would you have ruled on my motion for relief because of excusable neglect?
To get back to the terminal I would have to go through security. I could imagine how smoothly that would go. I had no baggage and no ticket. Assuming I could pull that off, I would then have to wait for the little subway train to take me to the terminal. It would take forever. And it was quite likely that someone had flagrantly filched Fred. Forget it. Dejectedly I walked out of the terminal and looked for the cab. It wasn’t there. Cabs are not allowed to park for more than a few minutes at the curb where passengers are picked up and dropped off. For the past fifteen minutes, my wife had been in the cab with its meter on, circling the airport, in a strange city. I paced back and forth trying to remember where the cab had been parked.
Then I saw Barbara waving frantically from a cab. I ran to the curb that goes along the outer circle and the cab came screeching to a halt. I climbed in without Fred. Barbara took my hand and reassured me that someone who needed Fred had found him and would put him to good use. That provided a modicum of comfort. Yet, I couldn’t help but feel that I had betrayed my friend. I knew how painful it had been for Tom Hanks to leave his buddy Wilson bobbing around in the ocean.
We arrived at the hotel at Ft. Lauderdale and popped into bed exhausted. The next morning we bumped into the Mosks who had just retuned from a stroll into town. Sandy told us about a medical appliance store a short ten-minute walk from the hotel. They had an assortment of backrests. I bought one, Sylvia, who accompanied me on the trip around the world. She was a congenial companion.
I am not sure there is any moral or lesson to be learned from this unremarkable story of loss and recovery at the outset of an extraordinary trip. Maybe it teaches us about the whimsy of fate. Negligence leads to a loss, and fate steps in with a solution--sometimes. Fate also could have given any one of us the life of a child struggling to survive the harsh streets of Agra, India. These children, who surrounded us with trinkets to sell as we entered the grounds of the Taj Mahal, would likely never escape from their hard gritty lives so graphically portrayed in “Slumdog Millionaire.” The unrealistic ending of the movie seemed to satirize a romantic "Bollywood" ending that these children would never experience.
The loss of a backrest is no big deal. By the end of the trip, I learned that losing Fred taught me not to beat myself up for my negligence. I pass on this advice. Lose a summary judgment motion? Don't fret, just learn from the experience to do better next time. This philosophy works—most of the time.
Last week I was on a panel at a lawyer’s convention in San Diego. I got a ride and took Sylvia with me. I thought I might write at the top of my notes not to forget her when I leave the hotel where the convention was held. I wonder if it would have mattered if I did. I could go on, but this story is more prosaic than edifying. No point in again submitting to you a motion for relief. On the plus side, there is always next time. Wait till you see the 2010 edition of the Dictionary of Obscenity and Taboo.