Tuesday, February 02, 2016

Do I Dare To Eat a Peach?

     I feel like "a patient etherized upon a table."  Sorry, but lately T.S. Eliot has been on my mind.  I will explain later.  But first, let's talk about my last month's January column, A *@#!ing New Year's Resolution.  You enthusiastically responded to my query concerning quotes that involve what some would consider objectionable words.  Should we sanitize them or quote them verbatim despite their vulgarity? The votes were overwhelming in favor of a direct quote.  Only three nays.
         Noted Appellate Attorney Jon Eisenberg was in the yea category.  His view about those who sanitize quotes is simply stated:  "Quote verbatim.  If people are offended, fuck 'em."  Well, I do have carte blanche to quote anyone who emailed me, don't I?  Nevertheless, out of a sense of comity, and an aversion to being sued, I asked everyone who wrote me for permission to quote them, and they all responded that I could… as best I can remember.  Mr. Eisenberg wrote:  "You may attribute.  Abso-fucking-lutely."  He added this enlightening exegesis concerning his colorful phrase.  It is called "expletive infixation," the "insertion of an expletive into a word for purposes of intensification."  He suggested I insert one in my next published opinion.  My immediate reaction:  "Abso-fucking-lutely" not. 
Mr. Eisenberg is in good company.  Justice Harlan in Cohen v. California 403 U.S. 15 (1971) wrote for the majority reversing the conviction of defendant for disturbing the peace.  The defendant appeared in the Los Angeles County courthouse wearing a jacket bearing the words "Fuck the Draft."  If the casual reader missed the quote, it was in bold in the opinion. 
In his opening paragraph, Justice Harlan pointed out, "This case may seem at first blush too inconsequential to find its way into our books, but the issue it presents is of no small constitutional significance."  Rather than again repeating the defendant's "distasteful mode of expression," his "vulgar allusion to the Selective Service System," Justice Harlan in his concluding paragraph wrote:  "It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense. Because that is the only arguably sustainable rationale for the conviction here at issue, the judgment below must be Reversed."
In Board of Education v. Pico 457 U.S. 853 (1982), the majority held that a school board exceeded constitutional limitations in removing certain books from school libraries.  Rejecting summary judgment in favor of the school district, the high court reasoned that issues of fact must be presented to determine whether the school board abused its discretion and remanded the case for trial.  One of the dissenters, Justice Powell, appended to his dissent a list of the books at issue in the case in which our special word has prominence in a variety of contexts.  He provided a generous list of examples.  Among the books are Soul on Ice by Eldridge Cleaver, A Hero Ain't Nothin' But a Sandwich by Alice Childress, The Fixer by Bernard Malamud, and Slaughterhouse Five by Kurt Vonnegut.  Horrors!  Looks like we have come a long way since 1982.
Getting back to comments I received, another prominent appellate attorney, Robert Gerstein, drew upon Cole Porter to cast his vote in favor of verbatim quotes.  "Good authors, too, who once knew better words now only use four-letter words writing prose… anything goes."  Gerstein opines, "So, why fight a trend."  
         Attorney Stephanie Charles, in elegant prose, wrote of her reaction when she stumbled upon the "forbidden word" in my last column.  "I can hardly believe my eyes—this is never seen.  The verbal liberation, the freedom of expression, the unleashing of the Id!  Never mind the teacup generation, the snowflakes that melt when exposed to offense.  Let them cry and protest.  Let them run to their safe places, wherever they may be.  They will not control your (or my) behavior.  My vote is in favor of adoption of the resolution."
         Justice Nora Manella wrote, "Count me as a vote for the real thing.  In this brash and vulgar world, only those living in a convent can credibly claim to have been insulated from coarse language.  The principal rationale for hiding offensive words is the no-longer-tenable suggestion that they are just too shocking for the average reader to digest.  One may deplore crude language, but quoting it neither endorses nor exalts it.  I am not unsympathetic to those who think the world would be a better place with less vulgarity.  I share the sentiment.  But if the defendant's actual words were 'Everyone on the fuckin' floor or I'll blow your fuckin' heads off,' saying he 'requested the bank patrons assume a prone position or risk an untimely demise' seems silly."
         Presiding Justice Judith McConnell pointed out that "it is important to accurately quote whatever was said since the offensive nature of the language used is part of the story we are telling."
         Judge Theresa Canepa wrote:  "Hear hear for your article!  I agree‑‑say what we mean, and mean what we say.  People should learn to cope with the real meaning of real words.  So for that New Year's resolution‑‑if people don't like it, then 'give 'em hell, Harry!'"
         Attorney Thomas Bourke recalled how a verbatim quote in an employment harassment case in which he represented the plaintiff made all the difference.  In his argument before an appellate panel, Bourke told the court that the supervisor's actual words were "What the fuck do you have against Harry?"  (I made up the name Harry.)  The defense attorney sanitized the statement with, "Well, how are things going?"
         Many readers wrote me to voice opinions about the use of vulgar language in general.  Civil Service Hearing Officer Jan Frankel Schau recognizes the importance of a verbatim quote in writing and rendering a decision, but in general she advises, "[L]eave it off your vocabulary.  Make your second language music instead."  Good advice, but even in music, one cannot avoid controversy.  Stretching the boundaries of tradition invariably results in complaints of vulgarity in some quarters. 
         My colleague Justice Steven Perren had this to say: "I spent more than a moment on one point:  the full spelling of the expletive.  Your points are valid.  My reaction:  it lessened the impact of the article.  You joined the ranks of the "'Potty Mouthed.'"  A conundrum.  In making your point, you arguably make the point to retain the silly practice.  You dropped the "'F Bomb.'"  Curiously, I think that not using the word makes it stronger.  Everyone knows it; everyone says it (gender to the contrary notwithstanding).  The spelled out word has lost its impact and has simply become a word used by those unable to go beyond four letters in objecting, decrying or rebuking another of his/her ideas.  The symbolic word seems more powerful:  I really mean it!"
         Retired San Diego Superior Court Judge Edward B. (Ned) Huntington wrote of his ambivalence:  "I'm a red-blooded, all-American male and a golfer, who uses the aforementioned 'word' in all of my everyday life.  I often mutter it in my daily use of this computer that tends to cause waaaaay toooo many 'operator errors' in its everyday functioning.  It's truly a word with which I've grown up – playing rugby, golf and fishing – however, I have to admit that when I saw the word in actual life-size print, it created quite an unexpected shock.  It surprised me to have such a reaction since I basically concur in your underlying thesis."
         Research Attorney Kathleen Berglund offered thoughtful comments about vulgar and offensive words.  She notes that many people, including those successful in business, "are all too disposed to use vulgar and offensive language.  They have no filters; they say and do what they want, and they may also think that using the 'f' word makes them sound tough, even authoritative.  But truncating the word won't change any of that, in my opinion.  If the word is truncated in whatever context it appears (including, even, in our appellate court opinions), most readers today will just laugh and think, 'Look at those ninnies, they can't even write the 'f' word!'"  "'Ha!'"  Ms. Berglund suggests "a national dialogue on offensiveness, vulgarity, and gracelessness generally—not to be confused with over-sensitivity.  Have we become so narcissistic, as a people, that throwing the 'f' bomb around at will has become acceptable, even standard behavior?  I hope not.  But that is the open and frank discussion we need to have.  Truncating the word, and thereby creating a sort of 'safe zone' for the reader, will not help to solve the problem."
            Attorney John Gilmore wrote:  "When I became officially allowed to practice law on January 16, 1962, the word over which you agonize meant something evil and menacing.  That is, even though it was a swear word that derived from an act of pleasure and, on occasion, procreation.  Now, it has lost its oomph.  Calling someone a 'f.....g a.....e' does not have the same force and effect as, 'You are a jerk.'  The f bomb is a dud.  So formerly offensive words, called 'swear' words, are being replaced by those in standard dictionaries of 54 years ago.  If one uses 'jerk' at an appropriate time and place, there is no thought of slovenly hiding behind swearing to make a point.  Just direct, straight talk to that point."
         Attorney Chris Moore prefers "the unrestricted use of Anglo Saxon expletives not be used in polite speech or writing."  He posits that "the coarsening of speech deprives these vigorous words of the very meaning and impact they deserve.  Having served in the Navy, I know that 's---' and 'f----' have many uses.  Used too often, though, they become just more all-purpose words that don't require thought, like 'swell,' 'gosh' or 'great,' and signify nothing."
         Attorney Martin Pulverman did not beat around the bush and gave me sound advice. "I prefer not to see noxious words.  I never heard my father utter a cuss word.  I didn't hear one from my mother until I was 16.  It is better that way.  You have no problem expressing a point of view without the use of offensive comments or objectionable, unpleasant and distasteful phrases.  Please keep it that way."
         Thank you all for writing.  Sorry I could not include everyone's comments in this column.  They were all enlightening. 
But let's get back to T.S. Eliot who has been on my mind.  I ordered two copies of a new annotated book, The Poems of T.S. Eliot.  They were delivered on our doorstep two weeks ago Sunday morning. 
My wife Barbara and I heard the thump of the package as the delivery person dropped it at our doorstep.  Barbara went downstairs to get the package.  As she opened the door, a young woman was running down our outside stairs clutching the package.  Barbara yelled an unavailing "Stop!"  I wish she would have added "thief" to the end of her entreaty.  The young woman jumped into a car parked at the curb with its engine running.  It sped off before Barbara could get the license plate number.  I arrived just as the car turned the corner.  I shouted at the top of my lungs….  You know, there is something unseemly about quoting oneself.

A New Year’s resolution… or not

     In this paragraph is an inchoate New Year's resolution.   Not sure whether to do it. A successful businessman I knew said this about lawyers: “We make a business deal and the lawyers f--k it up.”  Brief digression: I could have said “businessperson,” but because of the word this particular businessperson used, it seemed better to refer to his sex. Wait a minute, women use four letter words.  Hope I have not offended women by referring to the gender of the person who used the four letter word.
         Let’s leave that issue for another day and get back to my possible New Year’s resolution.  Did you guess what it is? Hint.  The example is in the quote.  Additional hint.  It has nothing to do with business, or people in business, or their genders. Businesspersons, men and women alike, often get to say or do whatever they want, even run for president.  That they make goofy business decisions seems to be beside the point.  Fortunately, we do not have to vote for them. 
         But back to my New Year’s resolution.  I am tired, even sick of sanitizing so-called “offensive” words.  The person said it; it is a quote, so why not accurately quote the person verbatim? Everyone knows that the word I truncated through the omission of two letters is “fuck.”  Whoops! I didn’t mean to do that…really.  Oh dear, now what? Pretend you are on a jury and I have instructed you to ignore the offensive word you just read.  O.K.? I could have replaced the offensive word in the third sentence of the first paragraph of my column with “screw,” or the less pernicious *@#!.
         This column was written on the last day of 2015. Therefore, my tentative New Year’s resolution to say or write the noxious word was not intended to take effect until 2016. That I opted for the not-so-subtle omission of two letters may be an indication of where I was leaning.  But projecting myself a few days hence when you are reading this column, I am not so sure I should follow through with this resolution. I am counting on you, dear readers, to help me out. 
         Here is the genesis of the troublesome New Year’s resolution I am pondering.  It is de rigueur these days to avoid unpleasantness.  College students at some universities have safe zones to go to where their feelings won’t be hurt.  I have read they are given warnings about works of literature that may upset them.   Do they get to take a pass on Oedipus Rex, Hamlet, Moll Flanders, and Ulysses, or see a therapist before reading the first page?  Not sure how the students will fare in what we call “the real world.”
         If liberal arts students can receive warnings about literature, should not law students receive warnings about the practice of law?  Pharmaceutical ads for drugs on T.V. give warnings: “May cause sterility, death, hives, itching to be on Broadway, necrophilia, and often death.”
         A warning on the bar exam should tell students:  “Passing the bar may cause you to suffer angry diatribes from unreasonable judges who fail to understand the logic of your argument.  Clients may stiff you on your bills, even when you obtain unimaginable victories.  If you go to a large firm, the partnership track may recede with each passing year.”  Personal anecdote.  Some time ago I spoke at the meeting of a large international law firm.  I learned that it then took at least 7 years before an associate would even be considered for a partnership.  Under common law, a person missing for 7 years is considered dead. 
And why not warnings for new judges that are attached to their oath of office?  “You may suffer reversals, unless you are on the Supreme Court, in which case some of your opinions may be disapproved by the same court a few years later. You could be attacked in a dissent or a concurring opinion by a colleague or two who thinks your reasoning sucks.”
To lower court judges: “You will be reversed for reasons that are often hurtful.  Attorneys on the losing side and arrogant law professors will write in their smug blogs and haughty law review articles in thinly disguised language that you are dimwitted and a dunderhead."
         My friend, the businessman, person or whatever, has a point.  We have become so cowed by what might, could, may happen that we dilute what we hope to accomplish or inhibit anything from happening at all.
                  Take, for example, the new language added to the oath of office for new lawyers. A new admittee must swear or affirm "as an officer of the court to strive to conduct myself at all times with dignity courtesy and integrity." Why the words “strive to”?  In my last column I criticized the new clause because it contains the words “strive to.”  In my role as investigative columnist, relentlessly seeking the truth, I learned from a reliable confidential source the reason for the words “strive to.”  In a clandestine conversation he/she told/conjectured there was concern that if the oath required that members of the bar go the distance and actually swear to conduct themselves with dignity, courtesy and integrity, not just “strive to” do so, over-zealous judges might suspend the licenses when they fall short.  Help!
We are becoming scared to commit to or express a point of view, take a definitive position, or say anything that might offend. I know people who will not use the word “niggardly” because it sounds offensive.  It means stingy or miserly. Its derivation goes back to the early 16th century. It has nothing to do with race. Do we have to cater to the illiterate or uninformed? 
So getting back to you dear readers. Political correctness is one thing, but there are truly offensive comments and phrases, the use of which we would be better not saying. If in an article I quote the exact words that someone uttered, words that most of us would consider unacceptable and objectionable, is it necessary for me to spell them out if I can convey what they are by leaving out a few letters, or substituting symbols in their place?
On the other hand, if the person said it, should I not quote the words verbatim? Does it not enhance the accuracy of the reporting and enable the reader to better evaluate and judge the comment?  The comment may be unpleasant and distasteful, but it makes us confront the world as it is, not just the beauty and goodness around us, but the disagreeable as well.  Better to understand and cope.  
So what do you think? I asked readers of the Daily Journal to weigh in on the subject.  They did.  I disclose the results in my Feb. 2016 column, Do I Dare to Eat a Peach?     Happy New Year!

Who Am I to Judge?

Many years ago I was a superior court judge.  I squint to look back to that distant time.  A cloudy image comes into focus and I can see through the lens of recall my presiding over a contentious marital dissolution action.  The financial and custody issues were complex.  The attorneys were experienced and competent.  After several days of trial, counsel and I were in chambers discussing stipulations that would reduce trial time.  We all remarked that this was a difficult case requiring me to decide novel and challenging issues. 
         For some reason I said something that is OK for judges to think, but not always to say, in public:  "Who am I to judge?"  Regret followed my words with the swiftness of a Proposition 47 petition for review.  I had no rewind button to pull the words back.  Both counsel smiled and said in near unison, "If not you, who else?" 
         That gave me comfort.  And decades later, in 2015, Pope Francis repeated the same words, "Who am I to judge?"  So did Albert Pierpoint, England's last official executioner.  England officially abolished the death penalty in 1969.  Pierpoint was interviewed on NPR this past year.  His father and grandfather had been hangmen, and he carried on the family tradition.  Pierpoint was well spoken and even showed respect for his "clients" as he carefully positioned the noose around their necks.  He did not inquire about the crimes they had committed.  They already had been found guilty.  He remarked that however heinous their crimes may have been, he asked himself, "Who am I to judge?" 
         2015 is a good year to reflect on how we judge.  Last month marked the 100th anniversary of the publication of Einstein's general theory of relativity.  In complex mathematical equations, we, I mean, one or two persons, understood that absolutes were gone.  Gravity was the warping of time and space.  I don't understand it either, but I always knew that nothing in the law was absolute.  Heisenberg's "uncertainty principle," known in the world of quantum mechanics, applies in the legal world. 
         That is why it is healthy for judges now and then to ask themselves, "Who am I to judge?"  This question acknowledges that there is rarely only one answer to a problem.  Last week, Chief Justice Tani Cantil-Sakauye noted in her eloquent remarks at the Italian lawyers reception honoring the Supreme Court that there are often two reasonable but different solutions to a legal issue.  Differences in opinion can and should be resolved with civility and open mindedness.
         Judges also realize that their obligation to decide cases and to write coherent, well reasoned opinions requires them to interpret the law so that litigants and the public have a reasonable notion of certainty, however illusive that ideal is.
         The recent case of In re D.M. [2015 DJDAR 12660] illustrates how challenging and difficult this goal can be.  Does spanking young minor children with a sandal (or a shoe as referenced by the trial judge and the dissent) constitute the infliction of "serious physical harm"? 
         The juvenile court in this dependency action thought it did.  The majority thought the trial judge applied the wrong standard in assuming jurisdiction and remanded the case for the juvenile court to "consider–evidence relevant to the genuineness of mother's disciplinary motive, the necessity of her punishment or the reasonableness of its severity."  The dissent argued, among other things, that even if this is a "close case," substantial evidence requires deference to the trial judge's findings.  It noted that the juvenile court judge said that "'[h]itting children with shoes is not a proper form of discipline, and it's physical abuse.'" 
         However one may view this case, he or she would be hard-pressed to say that the majority or the dissenting view is unreasonable.  I believe this is true even though one might reasonably quibble about whether or not the sandal in this case could be fairly characterized as a shoe.  I guess it depends on the sandal. 
         Judges are often required to decide cases that evoke sympathy for the losing side.  The expression of sympathy and compassion for such litigants is human and fitting in appropriate cases.  This disposition has a close affinity with the "Who am I to judge?" mind set.  My colleagues in Donorovich-Odonnell v. Harris (2015) 241 Cal.App.4th 1118 displayed sensitivity and humanity in an opinion involving terminally ill patients.  The case involved Penal Code section 401, which makes it a crime to aid, advise or encourage one to commit suicide.  Terminally ill plaintiffs and a physician sought a judicial declaration that the statute was inapplicable to a physician prescribing a lethal dose of drugs to mentally competent and terminally ill patients who wished to die. 
         The appellate court affirmed the trial court and ruled, among other things, that the plaintiffs did not have a fundamental constitutional right to the relief they sought.  The court stated, "We have great compassion for plaintiffs."  Nevertheless, it was compelled to conclude that physician aid in dying is a matter for the Legislature.  I cannot say whether or not the court's expression of compassion was a comfort to the plaintiffs, but the court's sincere expression helped explain to the public that judges are human, yet must rule according to rules and not merely as they please. 
         Donorovitch cited a similar case I wrote in 1992, Donaldson v. Lungren, 2 Cal.App. 4th 1614.  The opening sentence reads:  "Plaintiff Thomas Donaldson wishes to die in order to live."  Donaldson suffered from a malignant brain tumor.  He sought to have an assisted suicide so that his body could be cryogenically preserved until a cure for his condition could be found.  At that time he hoped that medical advances could bring his body back to life.  Like our colleagues in In re D.M., we expressed sympathy for plaintiff, but had to rule against him.  This may have been small comfort to Donaldson, but he and the public knew how and why we had to rule as we did despite our sympathy.
         Reasoned discourse gives the law its dignity and stature.  Forceful advocacy need not be antithetical to civility.  To achieve this goal, a sentence was recently added to the oath of office for the State Bar.  A new admittee must swear or affirm "as an officer of the court to strive to conduct myself at all times with dignity courtesy and integrity."
         Jerry Levine, a senior partner at Holland and Knight, and a great drummer with the Big Band of Barristers, remarked to me about the new oath during a break at one of our gigs.  We are the only band in the world whose members talk about law during their breaks.  "Strive?" he asked rhetorically. 
         He has a point.  Striving is usually a precondition to achieve anything worthwhile.  I propose a further amendment to the oath of office.  Delete the words "to strive."
         So a few days ago I finished my workout at the gym.  I showered, combed my graying hair, got dressed for work, went to the counter at the juice bar, and ordered my favorite breakfast power drink.  It's a blueberry special.  The ingredients are, you guessed it, blueberries, a banana, protein power, almond milk and other healthy goodies.  Rodrigo, the owner, saw me coming and immediately began preparing the drink. 
         I sat down next to a young woman who was deeply engaged, "texting."  I said "hello" to a friend sitting on the other side of me and then grabbed the glass filled with purple liquid next to me.  Rodrigo prepares drinks in a flash.  But the drink tasted different this time.  Whoops!  I had taken a swig of the young woman's drink.  Oh dear.  I put down her glass as Rodrigo handed me my drink.  "I drank this lady's drink," I said to Rodrigo.  "I know," he said.  We were laughing.  "What shall we do?"  I asked.  Rodrigo took her drink off the counter, poured it out, and made her a new one.  He placed it on the counter before her.  She was oblivious, still texting.
         I offered to pay for the drink.  Rodrigo refused.  I told him how foolish I felt.  He said, "No big deal.  Anyone could have made that mistake… but who am I to judge?"