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.
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