Wednesday, August 20, 2014

Almost The Truth

     To repeat what I have often said, we judges and lawyers are storytellers.  Every lawsuit, every judicial opinion involves a story.  One of the best is found in the short opening paragraph in Palsgraf v. The Long Island Railroad Company, 248 N.Y. 339 (1928).  Plaintiff Palsgraf is waiting on the platform of defendant’s station for the train to Rockaway Beach.  She is injured when scales fall on her.
         A train bound for a destination other than Rockaway Beach is pulling away from the station.  Two men are running along the platform to reach the train.  One of them jumps aboard without mishap.  The other man carrying a small package also succeeds in getting on board, but with a helping hand from a guard on the train, and a push from behind from the guard on the platform.  The small package contains "fireworks" and is “dislodged.”  When it falls on the rails, it explodes.
         The shock from the explosion causes the scales at the other end of the platform to fall on the hapless Ms. Palsgraf.  (The prescient Judge Benjamin Cardozo chose the neutral "plaintiff" rather than "Mrs." as the appellation.)
         Cardozo’s elegant writing aside, how could the fireworks explode if they were not lit?  When I was a kid, a long, long time ago, I went to Chinatown with my father in early July and we bought "fireworks."  This included firecrackers, rockets, pinwheels and sparklers.  The purchase in a back alley may have constituted a "transgression" of the Penal Code.  (I guess the Palsgraf case has put me in a 1920’s frame of mind.  In Palsgraf, the reader will be charmed by such words as "valise.")  As my dad and I got into our 1950 Plymouth, I dropped the package of fireworks.  And guess what?  They did not explode.  O.K.  I was not running to catch a train, but still.  
         This takes me to my thesis about stories.  The story that is first told to the lawyer by the client becomes a story told to a judge and sometimes a jury in a trial court.  And that story may be transformed into stories written in briefs, which become a story in an appellate opinion, and may even become a story told in the United States Supreme Court reports.  But these stories are not truly true stories.  Don’t get me wrong.  I am not suggesting anyone is lying.  But reconstructing facts remembered or imagined in the past does not shine a light on the unadorned truth.  Most of our stories in law or elsewhere are, at best, almost the truth.
         And that takes me to one of our country’s leading jurists, Judge Ruggero Aldisert.  In two weeks, at the age of 94, he will retire as Judge Emeritus of the U.S. Court of Appeals for the Third Circuit, with jurisdiction extending over Pennsylvania, New Jersey, Delaware, and the Virgin islands.  During his brief judicial career, a mere 52 years or so (they go by quickly when you love your work), he has taught me and countless other judges throughout the country and the world how to be the best at what we do.  How successful a student I have been I leave to others, but the six books he has authored have been invaluable to me and my colleagues throughout the country.  They are:  The Judicial Process: Text, Materials and Cases (2d ed. 1996) West Publishing Co.; Logic for Lawyers: A Guide to Clear Legal Thinking (3d ed. 1997) National Institute for Trial Advocacy; Winning on Appeal: Better Briefs and Oral Argument (2d ed. 2003) National Institute for Trial Advocacy; Road to the Robes: A Federal Judge Recollects Young Years & Early Times (2005) AuthorHouse; A Judge’s Advice: 50 Years on the Bench (2011) Carolina Academic Press; Opinion Writing (3d ed. 2012) Carolina Academic Press.  Add to this more than 50 law review articles and countless lectures to judges and lawyers throughout the world.
         But did I say six books?  Pardon the slip.  I just finished reading the seventh, Almost the Truth, A Novel of the Forties and the Sixties, published by AuthorHouse, 2014.  Drawing upon his experience as lawyer and judge and as a major in the U.S. Marines during World War II, Aldisert (here I refer to him as a fiction writer) has written a compelling narrative brimming with action, suspense, and intrigue that grabs the reader by the throat.  (Reviewer parlance.)  Not to worry, no spoilers here.
         Set during and after World War II, Aldisert’s story involves clandestine operations of the OSS during the Nazi occupation of Rome, and a trial that confronts and confounds us with an examination of what in fact is the truth.  The interplay between legal procedure and relevant facts forces us to acknowledge both the law's grandeur and its unavoidable limitations.
         When he took senior status in the mid-1980’s, Chief Judge Aldisert moved to Santa Barbara where he established chambers and took on a full case load.  I, along with several local judges, have had the privilege of knowing the venerable Rugi.  He has instructed me, as a friend, to address him as such.
         My favorite judge, Rugi, who hit a hole-in-one on the golf course last year, will be active as ever in retirement.  I suspect there will be more books and more holes-in-one to come.  I know and love Rugi.  But I assure you my review of Almost the Truth is completely objective.  That is the truth. 

A Storm of Ideas

Code of Civil Procedure section 170.6 allows a party or an attorney in a civil or criminal action in superior court to file a motion accompanied by an "affidavit of prejudice" to prevent a judge from deciding the case.  The moving party need only state, under penalty of perjury, that the judge is prejudiced against the party or attorney.  But the section does not require the recitation of facts to support the conclusion of prejudice.   Wait a second---this---oh my heavens---this permits the rejection of a judge for reasons other than a judge's prejudice… a rejection for any unstated reason whatsoever.  But that would be…. 
Enough.  Confession.  I committed perjury.  It happened in Department 1, the master calendar court of the Los Angeles County Superior Court, in 1965.  I was waiting for my first civil case to be sent out to a trial court.  The presiding judge was Donald Wright, who later became one of California's great chief justices. 
         Judge Wright called the list of cases to be assigned to trial court judges.  He called Chemerinsky v. Eastman.  The lawyers answered "ready" and he assigned the case to Judge Impossible (made up name).  The plaintiff's counsel said, "There will be an affidavit under 170.6, Your Honor."  Wright sent the case to another judge.  He then called the next case, Miller v. Star, and attorneys popped up from various parts of the cavernous Department 1 courtroom.  "Ready for plaintiffs and cross-defendants."  "Ready for defendants and cross-complainants Casner and Leach."  Judge Wright said, "This case will be sent to Judge Impossible."  In unison all the attorneys said, "There will be 170.6 affidavits, Your Honor."  This happened again in the next case called.  The attorneys drew straws to see who would file the affidavit of prejudice.    
And then Judge Wright called my case.  I answered "ready," even though I did not feel like I was.  He assigned me to Judge Impossible, and you will never guess what I said.  O.K., you guessed it.  "There will be an affidavit of prejudice under 170.6, Your Honor."  But I had never heard of Judge Impossible prior to the preceding few minutes.  Well, what would you have done?  Several experienced and respected trial attorneys in Department 1 filed affidavits.  There is no greater terror than the unknown.  I met that terror head on by avoiding it.  Under the circumstances, I felt it would be more foolhardy than courageous to take my case before Judge Impossible.  Lawyers must be highly tuned to the world about them.  They are often involved in contentious battles where the outcome is uncertain.  Success, even survival, depends on recognizing and confronting the unpleasant vicissitudes of daily life.    
I wonder how today's students can persevere in the world where as adults they must face unpleasant challenges.  In my column last month, I spoke of students demanding that their professors give them advance warning about works of art or literature that discuss possible offensive themes.  What if these students become lawyers?  They might petition courts to issue warnings before a decision:  "Caution.  This judgment may contain language offensive to the losing party.  Words such as 'damages', 'sanctions,' and 'untenable' appear with some frequency." 
Students at some universities are closing their minds to the world of ideas by objecting to commencement speakers they find objectionable.  We have all read about International Monetary Fund official Christine Lagarde, former Secretary of State Condoleezza Rice, and former UC Berkeley Chancellor Robert Birgeneau cancelling their university graduation speeches because of student protests.  Matt Pearce recently wrote about this phenomena in the Los Angeles Times.  He quoted columnist Michelle Goldberg who in The Nation termed such student protests as "left-wing anti-liberalism."  
Daily Journal columnist Julie L. Kessler, in her insightful column titled "The speech that never was" (June 4, 2014), argues that a vocal but small group of students "possess a frightening lack of tolerance."  Kessler is concerned about this narrow view of "enlightened intolerance."  So am I.  What if these students become future lawyers? 
I had similar worries in a column I wrote in 1991 titled "Freedom to express all points of view."  I wrote about a moot court competition at the law school at New York University.  So did the historian, columnist, and critic Nat Hentoff whom I referred to in my column.  I hope it is not immodest to quote myself.
"The presence of self-appointed enforcers to compel the expression of the politically correct point of view can have a devastating effect on the law profession.
         "Hentoff expressed his regret about the refusal of some law students at N.Y.U. to participate in moot court competition. They balked when given the assignment to argue against the petition of a lesbian couple seeking custody of a child.  The students thought it offensive to deny the lesbian couple custody because of their sexual preference. Of course it is. That's why we need lawyers. They are there to protect all points of view, however offensive. The Bill of Rights was enacted just so that politically incorrect points of view could be expressed.
         "If lawyers become intimidated by the enforcers of correct thought, then we are in big trouble. The students who refused to participate in the moot court competition because they disagreed with the principle they were assigned to argue, unwittingly sabotaged the very principles they professed to support.  When certainty of the correctness of your position causes you to silence the opposition, you have undermined your own position. You have become like your enemy.
         "If lawyers forget this, we will ultimately have a society where ideas are crimes. Fahrenheit 451, Brave New World, and 1984 will have been written in vain.
         "Those who fight for minority rights, whether they be the rights of gays, blacks, Jews, women, or atheists, should be particularly sensitive to preserving the right of others to be heard, no matter how loathsome the point of view.
"By allowing the free expression of bad and even offensive ideas, we insure that good ideas flourish. It is this way that we preserve the American freedom of mind and spirit. It's something law students must learn, and lawyers must never forget."
Hentoff wrote in-depth about free speech and quoted portions of my column in his book Free Speech for Me, But Not for Thee.  How the American Left and Right Relentlessly Censor Each Other (Harper Collins, 1992).   
But what about the perjury engendered by Code of Civil Procedure section 170.6?  Poor drafting.  A storm of ideas is a good thing.  Not to be confused with the gigantic storm that, by the time you read this column, may have become a hurricane named Arthur that ravaged the East Coast this past weekend.  Just for the record, it's not my fault.  I declare under penalty of perjury that I had nothing to do with it.