TO DOUBT OR NOT TO DOUBT

Perfectly acceptable words can become detestable through overuse and misuse.  “Incredibly” and “iconic” vie for first place on my list of abhorrent words.  Overuse sucks the lifeblood out of them.  Why can’t somebody just be who she is, for example, without the adverb “incredibly” dressing up and confusing a pejorative or praising adjective?  An incredibly talented oboe player may not be all that talented if her talent is not credible.

What also drives me nuts are guests on radio and television interviews who respond to the host’s salutation, “Thanks for being here,” with the cloying response, “Thanks for having me.”  On the occasions when an interviewer with poor judgment has actually… (Whoops!  Another word I despise.)  “Actually”… really?  “Actually” is a revolting redundancy.  Where were we?  Oh, yes, “when an interviewer with poor judgment has…” thanked me for an interview, I respond with the novel, “You’re welcome.”  And, besides, I would never thank anyone for being had.

And we need not dwell on the insufferable “no problem.”  “Can you change a dollar for me?”  How about this for a unique answer from the cashier ‑ “yes”?  Even if I asked would it be a problem to change a dollar, a good response would be “no” if the cashier can and will change a dollar.  The cashier does not have to add “problem” to “no.” I wonder how the cashier would respond if I asked, “Would it trouble you to change a dollar?”  I can barely tolerate “no trouble,” but would go crazy if he said “no problem.”

Recently I was introduced to a new word I am certain will not be overused. It was discussed in an article sent to me by well-known trial attorney John Blumberg.  The article appears in the November 2017 issue of Los Angeles Lawyer.  It was written by prominent appellate attorney Marc Poster.  For those of you who have not heard of these attorneys, I suppose they are neither well known nor prominent from your limited perspective.  To maintain balance and fairness in my column, from time to time I have mentioned attorneys who are neither well known nor prominent.  But to avoid controversy, and possibly a spurious lawsuit from unknown attorneys, please strike the adjectives “well known” and “prominent” from the descriptions of the two lawyers mentioned above.

Where were we?  Oh, yes, the new word Poster writes about.  The word is “dubitante.”  Like most of you, I didn’t know what it meant either.  Poster tells us dubitante comes from the Latin word “doubting” and is used in judicial decisions.  In my 42 years of judging, I never came upon dubitante, and I admit it scares the hell out of me.  I confess to being in a perpetual state of doubt.  I have argued that uncertainty pervades the law, but dubitante, if carried to extremes, and we see extremes raging across the world these days, could undermine the entire judicial system.  Poster says, “A judge voting dubitante signifies that he or she doubts the decision rendered, but is unwilling to state it is wrong.”  It might also be called an “indecision.”

Dubitante has its place when a judge deciding a case doubts the validity of her decision because it must be based on precedent established by a higher court.  But what about Judge Dillard in Nalley v. Langdale (2012) 734 S.E.2d 908, 922, quoted by Poster.  Dillard acknowledges in his concurring opinion that if he were deciding the case alone, his “reasoning and conclusions” could differ from the majority opinion.  Huh?  But, not to worry, the concurring Dillard assures us that his “colleagues have carefully and seriously studied the case.”  He defers “to the conclusions they have reached,” but then he pulls the carpet from under us with the caveat that his deference is emasculated by his “considerable reservations” about the majority’s conclusions.

Wait a second.  Last time I checked, we judges are obligated to decide.  It is in the job description.  Judge Dillard’s frank admission is disquieting.  Is it possible that on occasion a concurring judge who has vague doubts about concurring in an opinion goes along because of time constraints or laziness?  This could all be happening just below the level of consciousness.  This approach to jurisprudence reminds me of a New Yorker cartoon from many years ago.  The jury foreman is standing and addressing the judge.  The caption reads:  “Your Honor, we would rather not get involved.”

Dubitante can usher in a new judicial philosophy, the school of Doubtful Jurisprudence where opinions are doubtful or simply not rendered because the result is doubtful.  The dubitante judicial philosophy could well be influenced by the parting comments of Judge Posner on his retirement.

Posner posits that judges mostly do whatever they want and dress up the result in legal language.  In an interview with Adam Liptak in the New York Times, Sept. 11, 2017, Posner said, “I pay very little attention to legal rules, statutes, constitutional provisions.  A case is just a dispute.  The first thing you do is ask yourself‑forget about the law‑what is a sensible resolution of this dispute?”  Posner believes that if there is a “Supreme Court precedent or some other legal obstacle [standing] in the way of ruling in favor of that reasonable resolution,” a rare occurrence, “they’re often easy to get around.”

Dubitante is less or more honest, depending on your point of view.  It acknowledges that the judge does not know or is not sure what the answer is.  Posner’s parting philosophy could convince the judge who is unsure of the result to craft an opinion she or he thinks is sensible. 

         A judge who I never thought would have anything in common with Judge Posner was my friend, Harry Pregerson, who passed away last month.  Posner was an exponent of the economics school of jurisprudence.  He was a conservative for whom principles of social justice were overshadowed by principles of economics and social utility.  But he changed and became more like Judge Pregerson for whom the plight of the poor and disadvantaged was of prime importance.  Pregerson was unabashed in expressing his judicial philosophy for which he, like Judge Posner of late, took criticism.  It was reported that in his senate confirmation hearings he told the senators, “If I had to follow my conscience or the law, I would follow my conscience.”

         When I first went into private practice in the Valley, Harry’s office was a block or two away from my office.  We would exchange greetings in court and share a few war stories.  When Harry became a municipal court judge, I appeared before him on a dog bite case.  I will save that hilarious story for another column.  I appeared before him when he was a superior court judge as well.  I can assure you that, even though I prevailed in both cases, it had nothing to do with our friendship. 

         Harry was sui generis, a gentleman, filled with love and respect for everyone.  He made a difference.  And here there is no dubitante.

THE ENDING (Version 1)

     The Courts of Appeal throughout the state are now receiving briefs and other filings electronically.  The small minority of troglodytes, I mean, Luddites, confessed privately to me that the change is disquieting.  I have alleviated my unease with a re-read of The Cherry Orchard.  Progress has its downside.  I hesitate to think of my discomfiture if I should ever get behind the wheel… I mean, get into a driverless car.

         But, like most judges, I daily use my computer to draft opinions, write articles, columns, and to communicate with, among others, my colleagues and staff.  But, in the back of my mind, I have been wary.  Several years ago I sat by assignment with the California Supreme Court on a case, the outcome of which would involve millions of dollars.  In that case we did what I do with my colleagues on the Court of Appeal.  Prior to and after our conference, we communicate by email about the holding, the language with which to state it, and how to respond to one another's concerns, including a possible dissent.

         In the midst of typing my thoughts about the case and its emerging holding to members of the court, I panicked.  What if unauthorized people were able to read (I was not then familiar with the term "hacked") our emails?  They could possibly make or save lots of money if they knew or even had an inkling of how we were going to rule.  Worse yet, they could take advantage of other unsuspecting people who might part with money they otherwise would not spend.  I was assured by the appropriate "tech people" at the court that our emails were secure and that I need not worry.  And, as far as I know, no breaches have occurred in our court system. 

         But recently my complacency has been shaken by the Equifax catastrophe and concerns about the hacking of political parties’ emails.  To take my mind off the problem and calm myself, I watched some past episodes of Gang, I mean, Game of Thrones.  Still not sure what it is about, but it involves warring families and varying factions seeking political power and domination over others.  Horrendous cruelty abounds.  Ghastly death scenes showing glistening human innards are frequent.  There are a few admirable, yet flawed, characters, but many, whether they lust for power or not, display traits of deceit, jealously, revenge, cowardice, and sadism.  And most of them dwell on their differences, instead of banding together to fight their common enemy‑ death.  In other words, this series is about our current state of affairs.  The cool dragons that can incinerate thousands of people reinforce my point.

         Would you believe it?  The Game of Thrones series provided me with what could be a defensive maneuver should anyone think about hacking the court.  Like most series, the Game of Thrones’ plot or should I say plots are carried on from show to show, season to season.  At the end of each show, the viewer is left in a state of morbidly anxious curiosity about how the final dramatic nail-biting scene will be resolved.  This has resulted in a display of one of the lowest forms of depravity.  Unscrupulous spoilers have leaked the ending in advance of the next show.  Can you believe it?

         To foil such vexatious conduct, the producers of Game of Thrones borrowed a device used in the famous television series of yesteryear, Dallas.  In Dallas, they filmed several endings to prevent those who would reveal beforehand who shot J.R.  I read that The Sopranos shot several different endings for its final show.  And The Walking Dead filmed death scenes for all 11 possible victims.  Game of Thrones intends to shoot multiple endings of its final season to thwart those who wish to spoil the suspense.

         So why not use this approach with Supreme Court and Court of Appeal opinions?  It might take a little more time to draft multiple endings.  And I suppose the endings would have to have a reasonable relation to the facts and law that precede them.  The rule I usually follow is that the ending naturally falls into place by what precedes it.  But I doubt hackers would be the type of people who read what precedes the ending that closely.  In fact, does anybody, except maybe an annoying law professor?  When I was a trial judge and received an opinion from the Court of Appeal on one of my cases, I always read the last page first.  But due to a startling experience, I stopped doing that.  I recall reading the last page of such an opinion and seeing that heartbreaking word “reversed.”  I was crestfallen until I realized I had read the last page of the dissent. 

         Speaking of alternate endings, I almost forgot to mention that I often write multiple endings to my columns before publication.  This frustrates miscreant hackers who wish to deprive my readers of the suspense that precedes the endings of my columns that are often unexpected, if not puzzling.  Because of the nature of this column’s subject matter, I wrote many more endings than usual.  And wouldn’t you know it?  I forgot which one is the real ending.  Darn!  If any of you have suggestions about how I can resolve this dilemma, let me know.  Not sure you should use email.

TYYPOS

     Back in the old days when I practiced law, IBM Selectric was state of the art.  Few attorneys did their own typing, me being exhibit A.  And during desperate times when my secretary was sick, and the deadline hours away, I stumbled through rounds of combat with the Selectric.  To place the boxing analogy in the present, I was McGregor…sort of.

         It was the typos in each round that cost me points.  Lack of speed didn’t help either.  The cold, calculating IBM Selectric, like Mayweather, wore me down.  Even with today’s computers, and voice recognition software, pesky typos creep into my prose.  Bonnie, my watchful judicial assistant, usually ferrets them out. 

         Typos can have significant consequences in judicial opinions, motions, briefs and other legal documents.  Although not technically a typo, I include within the definition the inadvertent omission or addition of a word.  “Not” comes to mind, particularly when it should or should not precede “guilty.”

         In Afewerki v. Anaya Law Group (9th Cir., Aug. 18, 2017, No. 15‑56510), a typographical error was termed a “false statement.”  Defendant debt collector ran afoul of the federal Fair Debt Collection Practices Act (FDCPA) when it filed a complaint in state court to collect an unpaid debt.  The debt collector was given the correct amount of the debt due the creditor, $26,916.08.  But the collection company sued for $29,916.08, $3,000 more than owed.

In reversing the trial court on summary judgment in favor of the collection company, the 9th Circuit concluded this was a material false representation that could “‘cause the least sophisticated debtor to suffer a disadvantage in charting a course of action in response to the collection effort.’”  This, despite the acknowledgment that the error was inadvertent and corrected by the debt collector who served the debtor with notice of the correction.

And in McDonald v. John P. Scripps Newspaper (1989) 210 Cal.App.3d 100, the appellate court upheld the trial court’s judgment with … “AFIRMED.”  Unbelievable.

And typos in other areas can have embarrassing repercussions.  But first we have to decide if in fact an apparent typo is in fact a typo.  More than 10 years ago, I wrote about a newspaper story concerning a bank robbery.  I guess the following example was a typo.

The front page headline told of an “armed old man bandit” who robbed a local bank.  Let’s put aside the question whether a bank can be robbed.  And forget my indignation when I read that the “suspect’s age is somewhere between 50 and 60.” 

The article describes the “aged robber” as victimizing “multiple tellers” at “various local banks” over the past several months.  I suppose he could have victimized various tellers at multiple banks.  But, anyway, the elderly bandit entered the bank with a gun and threatened to detonate a device that looked like a pipe bomb.  The article then states, “The employees were ejaculated” and “the area sealed off.”  I heard that one teller asked the robber if she would see him again.  Another employee lit a cigarette.  Jay Leno thought the robbery had occurred at a sperm bank. 

Some years ago I received an award from an organization that presented me with a large parchment scroll.  My name appeared in bold, elegant, decorative calligraphy that would have been appropriate for the Magna Carta, or at least a movie about the Magna Carta.  The organization noted that among my attributes my “dedicated pursuit of truth and integrity in the judiciary are paralleled.”  Guess I was not much of a standout after all. 

         I would like to resist the childish temptation to search for titillating examples of typos to share with you.  So here are a few I came across.  Excuse me…I didn’t say I would or could resist.  You might ask yourself if they are in fact typos.  A school district urged parents to become “a Partner in Pubic Education.”  Shouldn’t kids have a well-rounded education?  A restaurant advertised its burger’s special ingredient, “anus beef.”  I’ll settle for a ham on rye.  I saw an ad for “Van Camp’s Porn and Beans.”  The opening page of a published book contains a “PEEFACE.”  But not in Under Submission, Volume II of my columns soon to be released.  I could go through some examples of tattoos gone awry.  Can you believe a biker has tattooed on his derriere .… ?  Never mind.

*****

         Two brief postscripts.  First to wish one of our outstanding jurists the best on her retirement.  Beginning this month Justice Kathryn Werdegar will no longer be sitting on the California Supreme Court.  Her incisive analysis, clear writing style, and well-reasoned opinions established sound precedent in California and helped sustain the preeminence of the California Supreme Court.  Her influence was far reaching and will continue in California and beyond for decades to come. 

         And, second, a final goodbye to my dear friend of 60 years, legal scholar extraordinaire, Harry Sigman, who passed away last month.  Harry taught commercial law at USC, UCLA, and universities in Europe and Israel. He represented the United States at the United Nations in matters of commerce.  His books, articles, treatises, and lectures on commercial law have been translated into numerous languages.  He was the world’s expert on Article 9 of the Uniform Commercial Code and authored significant changes in that law throughout the years.  No wonder he received the California State Bar’s Business Law Section’s Lifetime Achievement Award.

         Harry spoke numerous languages and was well versed in art, architecture and history, proving that a rich cultural background makes for excellence in a lawyer.  Harry’s searing intellect was put to good use in forging the foundation of what could well become a uniform commercial code in the European Union and the United States.  This dream of Harry’s would ensure a reasonable degree of certainty in commercial transactions throughout the world.  Harry, you will live on through your accomplishments.

                                                                          

FAKE

     I was at a dinner party at a friend's palatial mansion.  There on the wall of the living room was Van Gogh's “Vase with Fifteen Sunflowers.”  I said to him, "You must have paid a fortune to the Van Gogh museum in Amsterdam."  He replied with the nonchalance of the well-to-do, "It's a fake.  So is the Picasso in the den.  They cost plenty."  His casual response brought home that today fake is de rigueur. 

          That was not the case when I was a kid.  Fake fur coats were derided as cheap imitations for the unsophisticated of lesser means.  I recall a friend of my parents wearing around her neck a wrap of some poor, furry little creature with his stuffed head and outreached claws hanging over her right shoulder.  Such a haunting image can stay with a person for the rest of his or her life.  Some critics suggest it has influenced my judicial decisions.

          That reminds me of something even creepier.  When I was around five or so, my parents took me to visit their friend, an elderly lady, whose dog, Cookie, a Pomeranian, had died.  She enlisted the services of a talented taxidermist to have the dog preserved.  She brought the dog out of the closet for me to play with.  This too may have influenced my judicial decisions.

          Years later at a lecture on emotional distress by Professor Prosser in my torts class, it dawned on me why the dog never retrieved the balls I threw for him.  This encounter with a fake live dog was traumatic.  It has been therapeutic to write about the experience.  See past columns "Death Becomes You," May 2008, and "Pardon the Interruption," October 2014.  (Note‑Twenty-nine years of columns is bound to result in some recycling, whatever the reason.)

          But getting back to fake furs.  In the "old" days, not all fake was bad.  No one, well almost no one, thought Houdini actually disappeared into the ether from the water tank in which he was submerged head first, tied up in chains, only to materialize minutes later stage right, dripping wet.

          But today, what is fake is accepted and even respected in some quarters.  Fake furs are worn and acknowledged by many people no matter their economic or social status.  In many quarters killing endangered animals to make a frock is unacceptable.  And of course fake diamonds (to be genteel, let's call them synthetic diamonds) are worn by people of all strata.  Better to wear a cubic zirconia to a fancy ball and leave the diamond in the safe deposit box.  No one, well hardly no one, knows the difference and no one really cares. And today violins can be manufactured to nearly duplicate the sound of a Stradivarius.   Violin virtuosi cannot tell the difference. 

          And in bygone days we tried to maintain a healthy skepticism about what we read in the newspaper, but we never conceived of "altfacts."  As I pointed out in previous columns, "altfacts" is a paradox, an oxymoron.

          What is alarming is that the current "fake" phenomenon has the potential to permeate the judiciary.  I know of appellate justices who have had their opinions collected in impressive hardbound volumes.  These imposing books are prominently displayed in law firms and offices of arbitration providers where retired justices work.  They allegedly enhance business.

          But what if many of these bound opinions are mediocre or have been reversed with critical broadsides from the Supreme Court?  To the sophisticated reader, this business-getting device could backfire.  I fear that some enterprising entrepreneur will print "altopinions."  Surely no justice would participate in such a sham.  I doubt I would.  Nor would I worry too much about a slippery slope.  But… what if there were some sentences or paragraphs that could use a little editing for clarity?  Mind you, such tinkering would not change the result to a reasonably perceptive reader.  Or what if the Supreme Court just got it wrong or even got it right in its stinging reversal of the justice's opinion?  Would it not be permissible to set things right in an altopinion?  I'm just asking.  If someone other than the justice involved wrote an altopinion, that would be akin to forged art. 

          Enough about appellate justices.  I am concerned about trial judges who often suffer from incomplete truths that lead to untrue conclusions.  This occurs when only a portion of the facts are known or reported.  Back in the 60’s and early 70’s, Baxter Ward was a newscaster.  He served on the Los Angeles Board of Supervisors from 1972 to 1980.  When I was a young lawyer, I recall a so-called news story Ward reported concerning the Los Angeles Superior Court. 

          One afternoon, Ward walked down the corridors of the Mosk Courthouse, which was then called the Los Angeles County Courthouse.  He noted how few courts were in session and castigated the judges by name for playing hooky.  Of course his viewers did not know that the judges whose courtrooms were empty were in chambers settling cases or reviewing the next day's complicated law and motion calendar. 

          Today we have a solution for this kind of misleading reporting that creates a false impression.  I read recently in the New York Times about a company that has offered its employees the option of having a chip inserted under the skin to monitor their work and ensure they are keeping their hours.  This gives employees indisputable proof they are working a full day.  Not sure, however, if the chip is able to determine what the employees are doing while at work. 

What a wonderful idea for trial judges.  Judges, please bear with me.  Don't stop reading.  It's not a big deal.  The chip is only the size of a grain of rice and is inserted between your thumb and index finger.  It is not a tracking device.  You merely swipe your finger under a device to prove you are at work.  Just think, this tiny device would have revealed all the missing facts to defeat Baxter Ward's erroneous conclusion. 

You ask why not insert chips in the fingers of Court of Appeal justices?  That would be absurd.  First of all, appellate justices appear in a courtroom for oral argument only once or twice a month.  Other than that, the justices are usually out of sight, meticulously drafting and editing opinions.  Second, does anyone in the media or public really know or care about the Court of Appeal?  Unlike trial judges, appellate justices' names are rarely mentioned in the news.  I'm just trying to help.  And that's a fact.