Monday, August 01, 2011

Time On My Hands

Judging and much of practicing law involve forays into the past. Of course we do this in the present, and hope that our efforts lead to a predictive glimpse into the future. A typical case, no matter what its complexity, involves a reach into, a recollection of, the past. In simple terms, someone or some entity did or did not do something that caused some type of injury to someone else. In the present we look to the law to help us decide whether redress is possible. We also factor in costs and evaluate the likelihood of success. Is the pursuit worth the effort? And, if it is, will we gain a worthwhile benefit in the future? And this calls into question whether our remembrance of the past is accurate (take note Mr. Proust). How much of the past do we imagine or assume?
Notice all the questions in the preceding paragraph? Notice the preceding sentence is a question? All these questions highlight that our perceptions about time are inexact. And now for yet another question. Sorry. Where does this lead? You expect an answer to all these questions? How should I know? I am used to asking questions. And how would a lawyer typically answer these questions? Gosh darn, another question. But you know the answer to that question. You ask a lawyer, "What about this or that?" And what is the exordium to the answer you receive? Pardon a detour for another question. What does exordium mean? I will rephrase the question. What are the customary words the lawyer uses to preface her answer? "Well, it all depends, Your Honor…."
I may not know where it leads, but I can tell you what it reflects about the law. Uncertainty pervades the profession. We take educated guesses about what the law allows or disallows, and we try to write opinions that elucidate the law as it applies in certain situations. In some cases we get close to certainty, but absolute certainty is an illusion.
We know this in our everyday lives. We may yearn for certainty, but intuitively we know that time makes certainty certainly uncertain. The intersection of the past, present and future is the insuperable roadblock to reaching unconditional confidence into what the future holds. This is tough on columnists, particularly this columnist. I am writing this column now, but my "now" is not your now. My "now" is now in the past for you. And now, while I am writing this column, your "now" is in the future for me. I have no idea whether you will even be reading this column, in which case, I am like a tree falling in the deserted forest.
This philosophic inquiry into time undermines the myth of the omniscient writer. Let me explain. In my last column, I spoke of the superb Los Angeles Lawyers Philharmonic under the direction of its talented conductor Gary Greene. I also shamelessly mentioned that I would be performing in a concert with the orchestra at Disney Hall on Saturday, July 30th. For me now, writing this column, the concert has not yet happened. But for you, it has. I have no idea what the reviews are, but you do. As you read these words, I could be on the stage, the one leaving town, not the one at Disney Hall.
Another example of how a present action that is good for some becomes a past action in the future that can have unforeseen consequences. Many years ago, I authored an opinion, First Central Coast Bank v. Cuesta Tit. Guarantee Co. (1983) 143 Cal.App.3d 12. A creditor bank tried to garnish funds in an escrow due its judgment debtor, a real estate broker. On the date of the levy, not all the funds had been deposited into escrow. Because the funds due the broker were contingent on additional funds being deposited into escrow, the broker had, at best, a contingent right to collect his fees through escrow. Therefore, on the date of the levy, there were no funds to attach.
How did I know that twenty years later, when my wife and brother-in-law tried to attach funds owed them from a real estate broker judgment debtor, the Cuesta case would prevent them from collecting fees in an escrow due the judgment debtor? In plain speak, you never know when the past will rear up and bite you… somewhere.
That actions we take in the present are influenced by past experiences, and reflect our individual expectations for the future, are nothing to fret about. We cannot predict everything about the future, but we we can make good and valid predictions that generally bear out our expectations. Often we have had to sift through numerous facts and, after due refection, have been struck with an insight that justifies a decision that mostly meets our future expectations.
A few days ago Governor Brown nominated Goodwin Liu for the California Supreme Court. I am as close to certainty as possible in predicting that Liu will be one of the great justices to sit on our high court. The Governor considered numerous worthy candidates for this position, and no doubt he weighed the merits of worthy sitting judges as opposed to those from practice or academia. But whatever the pros or cons of those competing views, when someone of such stunning brilliance and accomplishment emerges, you know the present decision will have good future consequences.
Can we predict how Liu will rule on every decision? Of course not. No one, not even Liu, possesses such certainty. But we can be relatively certain his decisions will be made within the framework of his judicial role, and he will be interacting with and considering the views of his distinguished colleagues. And we can be certain that he will reflect on the cases before him and make informed decisions that reflect clear and reasoned analysis.

On Another Note

Damn! I miss my First Amendment rights. If a corporation, which, at best, is a fictional person for limited purposes, has First Amendment rights, then why not me? I am a real person… most of the time. In voicing this concern, I speak for judges throughout the country who must glue their lips together, while politicians, pundits, radio talk-show hosts, columnists, law professors, lawyers, and Joe, whether he be a plumber, carpenter, taxidermist, or neurosurgeon, rant about everything, including judicial decisions.

And why is freedom of expression so abridged for the judiciary? Because a plethora of rules, regulations, and canons of ethics prohibit judges from engaging in any activity outside of the courtroom that could remotely reflect on their objectivity. The mere possibility that a judge's fairness could be compromised inhibits him from responding to scurrilous editorials or publicly expressing themselves on controversial topics. It takes its toll. The seemingly calm impassivity revealed on a judge's face can be the cover for seething rage within.

The "appearance of impropriety" imposes the principle of judicial restraint on all judges. Well, not exactly all judges. U.S. Supreme Court justices appear to do and say whatever they damn please. The rules do not apply to them, and there is no indication the highest court in the land intends to impose rules on itself.

A recent article in The New York Times by Jeff Shesol questioned whether Supreme Court justices should express their “personal” opinions in public. Like most appellate court judges, they forcefully express their "opinions" in their opinions, and some have no compunction about scoring their colleagues with whom they disagree. Is their “objectivity” compromised when they speak in general terms about the law and the Constitution in public forums? Of course not. Eschewing subtlety and tact, Justice Antonin Scalia makes clear his views on or off the bench. It is easy to imagine the content of the constitutional tutorial he delivered to the Tea Party caucus.

That Justice Clarence Thomas has attended gatherings hosted by the ultraconservative Koch brothers, or that Justices Ruth Bader Ginsburg and Stephen G. Breyer have attended "liberal" policy forums is no big deal and no surprise. The justices are going to rule the way they do whether or not they speak at or attend a meeting sponsored by an organization with a specific policy agenda. The problem with such participation, however, is that the public's respect for the judiciary, if there is any, erodes when the justice rules on issues dear to the organization involved. Justice Thomas' opinions often reflect conservative views, but one would hope, if not expect, Justice Thomas to recuse himself from a case in which a Koch brothers' organization was a party. Right?

I suppose that because judges do wield such power, they possess a certain mystique that engenders interest in what they do and say off the bench. Their speeches and articles may give some insight into how they may rule, but merely reading their past decisions is often the most reliable predictor. And, believe me, the mystique thing is a phantom. To one another, judges do not have mystique.

Getting back to Justice Thomas again, mystique is not a term he would use to describe his job. In an article about him in the Los Angeles Times last week, he had this to say about his job: “There’s no money in it. No privacy. No big houses… from an ego standpoint, it does nothing for me." Thomas acknowledges it is an honor to be on the high court, but he says, "I wouldn't say I like it." What he likes is to drive a motor home.

Mystique or not, I would like to exercise my First Amendment rights with the scope and freedom enjoyed by U.S. Supreme Court justices. True, for 22 years, I have expressed my views on a number of controversial issues in this column. But this endeavor is fraught with peril. A persistent nagging question dogs every word I write: Will this be the word, the sentence, the paragraph, the entire column that muzzles me… and the dog? If this should happen, I may have no choice but to fall back on a profession I had rejected long ago.

Let me explain. When I was a kid I thought of becoming a jazz pianist. What militated against that choice then and what concerns me now are: I can’t stand cigarette smoke, heavy drinking, late hours, and people talking while I'm playing this quite apart from whether or not I am worth listening to. And there's no money in it. I have played gigs where the musicians were so underpaid, they had to share a rolled cigarette at the break.

So instead I went into a related field, judging. As Justice Thomas pointed out, the money in judging isn't all that good either. But there are other things in common between judging and playing jazz… lots of improvising. The Court of Appeal is much like a jazz trio. Three people collaborate to produce a final product, an opinion, or a piece. The difference is that on occasion a dissent turns the trio into a duo. That seldom happens in a jazz combo. You can just imagine what occurs if the sax player takes off in another key, or the drummer plays in a different tempo than the others. That could be the creation of chaos or, perhaps, something avant-garde. In either case, the audience may walk out. But such an incident would rarely engender a fist fight among the musicians.

So in this respect jazz musicians and judges are dissimilar. As an example, I offer the Wisconsin Supreme Court. It has been reported that one justice was so exasperated by the views of another justice that he grabbed her around the neck. I am sure their politics had nothing to do with it. Therefore, I need not tell you that the alleged choker must have had a flash-back to his days as the Republican leader of the State Assembly.

I have no plans to leave the court soon, despite my having spent half my life in this profession. But I will be performing briefly in my other profession with the L.A. Lawyers Philharmonic at Disney Hall on Saturday, July 30. Joining me will be lawyer-musicians Greg Victoroff on drums, Bob Hirschman on bass, and Joe DiGiulio on alto sax, and a surprise singer named Barbara. My colleague and friend, Justice Steven Perren, will be singing selections from "Porgy and Bess."

Now enter stage center, the First Amendment. I would like to tell you more about the concert, but the canons of ethics prohibit me from using the "prestige of my office" to endorse this wonderful orchestra or its brilliant conductor and founder, Gary S. Greene, Esq.

In the event you attend the concert, do not tell me or Justice Perren about it. We would have to recuse ourselves from any case you would have in our court and, in all probability could never, ever have anything to do with you again.

And I almost forgot. There is the other rule that judges must never do anything that would hold the judiciary in disrepute. What a quandary. This rule applies with full force during my solo. And one last thing if Justice Thomas and the Koch brothers attend, don't tell me about it.