Wednesday, October 26, 2016


     I am a strong proponent… No, I need a more forceful adjective.  How about “obsessive”?  Yes, …an obsessive proponent, advocate, champion for short opinions.  Is anyone listening?  Not the United States Supreme Court and not many of my distinguished colleagues in our state courts.  We limit the number of pages in briefs that lawyers file in our courts.  Judges should adhere to a similar rule.
We know all the arguments favoring short opinions advanced by a host of commentators, which include Garner, Aldisert, Leflar, and Witkin, to name a few.  With me, it has become an…oh, yes, I already said, "obsession."  "Fixation" probably doesn't add much.  But you get the idea.  But why such an all-encompassing preoccupation?  Recently I experienced an epiphany in an environment far removed from the law.  That lawyers and judges were present had nothing to do with my insight.
         A few months ago musicians and singers, all of whom were in the legal profession, performed a "rock and roll" medley of songs from the 50's and 60's written by famed composer Richard Sherman.  The concert at Disney Hall featured the Los Angeles Lawyers Philharmonic conducted by Maestro Gary Greene, Esq.  The singers included Judge Curtis Kin, Linda Hurevitz, and Ken Freundlich.  The musicians were Bill Ryan on guitar, Eric Schaefer on bass, Jerry Levine on drums, and yours truly on keyboards (a misnomer)‑‑it was only one keyboard, electric (ugh), not a real piano, or, as they call it in the profession, an "acoustic" piano.
Rock and Roll from any era is not my genre.  But playing in this concert was a treat, because it was in honor of the personable and warm-hearted composer Richard Sherman, winner of two Academy Awards, The National Medal of Arts, and numerous other awards.  Richard was present and told me how much he enjoyed the concert. 
The tunes we played included "Pineapple Princess" and "You're Sixteen."  (Don't I wish).  But one tune in particular upset me, "Tall Paul."  The lyrics make a big deal about stupid Paul just because he's tall.  Of course it bothered me because I’m short, not the most impressive attribute to have in high school…when you are sixteen. 
And with advancing age, I'm getting shorter.  I have been called the "incredible shrinking judge."  I have nightmares about the movie "The Fly."  In the final scene of the early 1958 film classic, the hero who has turned into a fly is nearly invisible caught in a spider's web.  I still identify with this creature crying out in his small, high-pitched voice, "Help me, help me." 
So it is possible that my bias in favor of short opinions stems from my height… or lack of it.  Yet that should not detract from my argument that generally shorter opinions more clearly explicate the law than longer ones.  Only, like the plight of the fly, no one appears to hear my cry for shorter opinions, despite the universal acknowledgement that "less is more."  I would amend the maxim of jurisprudence enshrined in Civil Code section 3537 so that it would read: "Superfluity does vitiate."
Some of our nation's great jurists wrote short opinions.  I have often remarked about Justice Cardozo and his famous Palsgraf opinion.  Twenty-seven years ago I wrote in the Daily Journal:
"I don’t think writing comes easy.  It requires effort and commitment to write something of quality.  A good finished product comes from several drafts, whether it be an article, a hate letter or a shopping list.  It’s even harder to write an opinion that is lucid and concise.  Take for example the famous opinion in Palsgraf v. Long Island Railroad Co., 248 N.Y. 339 (1928).  It is a paradigm of simplicity and clarity.  Here is the statement of facts:
“‘Plaintiff was standing on a platform of defendant’s railroad after buying a ticket to go to Rockaway beach.  A train stopped at the station, bound for another place.  Two men ran forward to catch it.  One of the men reached the platform of the car without mishap, though the train was already moving.  The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall.  A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind.  In this act, the package was dislodged, and fell upon the rails.  It was a package of small size, about fifteen inches long, and was covered by a newspaper.  In fact, it contained fireworks, but there was nothing in its appearance to give notice of its contents.  The fireworks when they fell exploded.  The shock of the explosion threw down some scales at the other end of the platform many feet away.  The scales struck the plaintiff, causing injuries for which she sues.’”
Cardozo pointed out that an over-emphasis on details obscures meaning, and the Palsgraf opinion makes the point with just the right amount of detail.  Yet, even the writing in Palsgraf has been criticized.  I read recently that one critic complained that there was no need to mention two men running for the train.  His point, who cares about the guy who made it to the platform of the moving train without mishap?  He has nothing to do with the case.  The person of interest is the one who was unsteady, requiring the guards' help, which caused him to drop the small package of fireworks.  
Not sure I agree with that assessment.  With an economy of words, Cardozo vividly describes the entire scene.  Two men are running for the train.  The less agile, and probably the taller one, needed help.  In my opinion the scene lacks impact without reference to the shorter, more nimble, of the two men running for the train.  The words paint a picture the reader can visualize. 
Yes, these facts, so clear and concise, are nevertheless puzzling.  How, under these circumstances, could a small package of fireworks explode?  And how could such an "explosion" be of such force to cause scales at the other end of the platform to fall on poor Ms. Palsgraf?  Don’t you have to light fireworks?  Maybe a spark emanated from the engine, or maybe fireworks in the 1920’s were different than the firecrackers I lit as a kid.  Don't spread that last comment around please. 

I can hardly bring myself to say this, but could it be that the Palsgraf opinion is too short?  But then again is it necessary to know how the fireworks exploded?  I mean they did, right?  I have to think about this some more.  Oh gosh, this column is getting too long.  Better stop.  I’ll get back to you.  If I had time, I would have written a shorter column. 

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