I Hear Voices

     In decades past, before the ubiquity of the disembodied voice, we heard the old-fashioned voice.  Remember?  That was the voice that came from the mouth of a person we saw.  And that person saw us.  Take, for example, a judge informing counsel her ruling in a law and motion matter.  "Demurrer sustained…without leave."  Damn! 

         Sometimes you got a few minutes advance notice.  The tentative rulings were on the counsel table for perusal before the judge took the bench.  Or the tentative rulings were on a sheet posted on the wall outside the courtroom.  Attorneys elbowed their way through the crowd of their colleagues, straining to see how they fared.

         Enter technology.  Some courts used a telephone call‑in.  You could call in the day before the law and motion calendar and hear the recorded voice of the judge or his or her clerk read off the tentative rulings, "No. 34, Fleming v. County of Los Angeles.  Summary judgment granted as to counts 2 and 4.…"  Behold the arrival of the disembodied voice. 

         Today when calling a company about your bill or services, it is rare for you to speak to a real person in real time on the telephone.  There are exceptions.  I spent a fruitless 45 minutes trying to resolve a discrepancy in a bill with someone named "Howard" in Bangalore, India.  I have to admit that I do better with disembodied voices.  But that depends on the particular voice I speak with.  For example, the voice I call to pay one of my credit cares is wonderful.  She (most of these voices are female) is warm, friendly and engaging.  She speaks in the current vernacular with a lilt.  When I tell her that I wish to pay the full amount, she answers with, "OK, I will go ahead then and process your payment."  It's charming that she says "go ahead then...."  She gives me my confirmation number at just the right speed so I can write it down on the first try.  I would like to chat a bit, but I don't want to impose on her time.  She gives me a cheery goodbye.  I don't feel so bad about paying the bill. 

         I bet she would be even more cheery if I told her I wanted to pay the minimum due.  I doubt though that she would tell me in the same unbeguiling manner that such a payment would eventually be the equivalent of 28% interest with finance charges, account and special handling fees. 

         I don't care all that much for the voice of my insurance company.  She is too upbeat for me.  She goes through the prompts with a smile in her voice.  I don't need "happy."  Someone just totaled my car.  The insurance lady's ingratiating, cloying voice irritates me no end.  She reminds me of Jack Smith, a popular singer in the 1940's.  He had a radio show in which he rendered songs of the day, no matter what the lyric, with a smile in his voice.  Sorry, but the lyrics to "I Have a Right to Sing the Blues"or "Stormy Weather" just don't work with a smile. 

         But there are other voices I intensely dislike.  Take the voice that repetitively orders me to insert my validated parking receipt in an impossibly narrow slot to cause a gate to lift so that I can exit the garage at the gym.  Her tone is demanding and offensive.  She keeps repeating without pause in an exasperated tone, "Please insert your parking ticket in the slot.  Please insert your parking ticket in the slot.  Please insert…."  Can't help it.  I answer.  "Give me a (expletive) chance (expletive)."  Unfazed, she continues, while I fumble with my ticket.  "Please insert your parking ticket…."  And on the occasions when I accidentally insert the ticket with the black strip on the left instead of the right, the voice becomes louder and more strident.  When I successfully get the ticket in the slot with the black strip on the right, the gate goes up and I tear out of there.  Her crisp "thank you" oozes insincerity.

         Next to the gym at the corner of Sunset Blvd. and Pacific Coast Highway there is a gas station where I often fill up and then head north to the court.  The voice I hear at the gas station is not disembodied, but it should be.  Perched on the top of the bullet-proof enclosure, wherein sits the unfriendly cashier surrounded by shelves of unhealthy snacks and cigarettes, is a talking mechanical pelican who comments on the least important events of the day. 

         I am pumping gas when I hear the amplified pelican's voice speaking to me in the argot of a 16-year-old surfer.  "Hey Dude!"  The pelican distracts me from the screaming ads on the video screen on the gas pump.  The pelican offers a comment concerning an unusual phenomenon in the ocean just a few hundred feet away.  Unseasonal warm ocean waters had brought thousands of anchovies near the shore line.  This in turn attracted hundreds of pelicans dive bombing into the ocean to dine on this delicacy.  "Dude, with all these pelicans maybe we should call this Pelican Coast Highway."  "Yeah Dude, cool," I answer.  The pelican's head turns, but his body is erect.  Day and night he stands watch on the rooftop of the market with its unwholesome products, offering an endlessly inane commentary. 

         There is a new movie out called "Her."  It is set in the future and is about a computer nerd who falls in love with the voice on his advanced operating system.  And that brings to mind Siri on my iPhone.  I prefer not to discuss our relationship, but, let's just say, we are good friends.  And I prefer to leave for another day a discussion about the robotic inhuman male voices we often hear on answering machines.  This is a good device to encourage people not to call back. 

         So let's come full circle back to the courts.  Why not have phone‑in oral arguments with voice prompts in the Court of Appeal?  The appellate attorney will call a number and state the case name.  A typical voice prompt will ask, "Does not the Becker case you cite in your brief defeat rather than support your argument?  Please respond.  I didn't quite get that.  Please repeat."  If any attorney stays on the line in the hope she will speak to a representative… it will be a long wait. 

Justice For All

A nail-biting cliff hanger.  Unexpected, startling twists, and turns at every corner and in the middle of the block.  Tension and anxiety build to near unbearable levels. 

Hard to believe, but I assure you the preceding paragraph aptly describes a three-volume work entitled, "To Establish Justice for All, The Past and Future of Civil Legal Aid in the United States."  This master oeuvre by retired Court of Appeal Justice Earl Johnson, Jr., and published by Praeger an Imprint of ABC-CLIO, LLC (2014), is filled with adventure, drama, philosophy, politics, psychology, and ethics.  It is a gripping and dramatic history that reflects a critical aspect of our nation's continuing struggle to realize its guiding principle written with unabashed certainty in the preamble to the Constitution:  "to … establish Justice."

And who better than Justice Johnson, the second director of the Office of Economic Opportunity (OEO) legal services program, a law professor and justice on the California Court of Appeal, and now a Visiting Scholar at the University of Southern California, to chronicle the history of legal aid to the poor in civil cases?

Johnson tells us in the prologue that his book is "10 percent memoir" and 90 percent "traditional history."  But there is nothing traditional in his engaging and absorbing narrative.  The manner in which he relates the history has an immediacy and drama that takes hold of the reader's shoulders and won't let go.  This I attribute to Johnson's skill as a writer, his passion for the subject, and his involvement in many of the events he writes about.  At the outset he acknowledges that his history is one with "a point of view."  He relates that his book "tells the story behind our nation's tardy and as yet unfinished effort to make those people unable to afford lawyers equal to those that can - and thus for the first time establish justice for that segment of the population."

Lest one thinks the legislative battles over legal aid were played out against the backdrop of the partisan gridlock we see today, the great legislative and legal battles Johnson describes did not involve "the usual story of Democrats versus Republicans.  Indeed the majority of the heroes in this book are Republicans, even though the federal program was started initially by Democrats, and it has been sustained by a bi-partisan coalition for most of its existence.

"Is it true or false that Donald Rumsfeld said, "A vigorous legal services program is, in my judgment, an essential element in this Nation's efforts to deal with problems of the poor"?

Is it true or false that Richard Nixon said, "As lawyers our first responsibility is, of course, to see that the legal profession provides adequate representation for all people in our society…. [T]here is no subject which is more important to the legal profession, that is more important to the nation, than … the realization of the ideal of equal justice under the law for all"?  

If you chose "false" to either of the statements, you are wrong …and probably a fuzzy-brained, close-minded, knee-jerk liberal.  Sorry, I was thinking of myself.  If I had not read Johnson's book, I could well have chosen "false."

We meet an array of famous historical figures who played a part in either promoting or attacking legal aid.  In addition to prominent members of the American Bar Association, they include Teddy Roosevelt, Charles Evans Hughes, Sargent Shriver, Lewis Powell, Richard Nixon, Donald Rumsfeld, Dick Cheney, Hillary Clinton, Walter Mondale, Newt Gingrich, Philip Gramm, and Ronald Reagan.  Included in the cast of characters are a number of well-known Californians who played a significant role in legal services for the poor.  Former California Supreme Court Justice Cruz Reynoso, leading appellate attorney Jerome Falk, current Court of Appeal Justices Stuart Pollak and Laurie Zelon, and Ninth Circuit Court of Appeal Justice Richard Paez.

Johnson's history begins with what he calls "the Charitable Era," 1876 through 1964, when mostly private donors provided legal aid on a limited basis.  Johnson takes us through the War on Poverty, the creation of the OEO, and ultimately the Independent Legal Services Corporation (LSC).  The legal and legislative battles to preserve and defend the corporation serve as a primer on the grit, sweat and horse trading that make legislation possible in a democracy.  It brings home the adage that laws are like sausages — it is best not to see them being made.

 We are taken behind the scenes and made privy to the strategies employed in court battles that produced important cases like Brown v. Legal Foundation of Washington, 538 U.S. 216 (2003), that found the use of IOLTA (Interest on Lawyers' Trust Accounts) to fund legal aid programs is constitutional.  The majority opinion written by Justice John Paul Stevens held that the state's use of IOLTA to pay for legal services provided to the needy qualified as a public use so that the state could exercise its authority to confiscate private property under the just compensation clause. 

 Johnson relates how the IOLTA program began in England and was employed in Australia and Canada.  It came to the U.S. by sheer luck.  A barrister from Canada, and the chief justice of the Florida Supreme Court, both of whom had been young lawyers working in the same law firm, met for a glass of wine. The question, "So what's new in British Columbia?" led to the creation of IOLTA programs in the U.S.  The program instituted in California mandated, not merely encouraged, lawyers to deposit trust funds in IOLTA to be used for legal services for the poor.

A law professor's study during the seven-year period 1967 through 1974 found that 7 percent of the cases heard by the U.S. Supreme Court were argued by legal services lawyers. The lawyers had a 62 percent victory rate.  Prior to 1967, poor people in civil cases had been shut out of the legal system.  And strange as it may seem, most of the victories happened after Warren Burger replaced Earl Warren as the chief justice and after several Nixon appointees joined the court.  There were also scores of victories in the appellate courts. This belies the myth that legal services lawyers were pursuing a left-wing radical agenda. 

 We read a suspenseful narrative about the great battle fought by Gov. Ronald Reagan to defund the CRLA (California Rural Legal Assistance) in California, a battle that involved a host of participants and put the Nixon administration in an uncomfortable position opposing Reagan.  We are told about an interesting meeting between the author Johnson and Dick Cheney at Johnson's cabin in Big Bear.  We see the victories and defeats since the inception of the LSC. 

The blows suffered by LSC funding and restrictions on its powers during the Gingrich "Contract with America" years have not defeated legal services for the poor, but have been a major setback.  Abortion cases, class actions, and legislative advocacy may no longer be pursued, dashing the promise of helping hundreds if not thousands of people in a single class action or through the promotion of a legislative act.  But many non LSC-funded organizations are taking up some of the slack.

Johnson points out the nation's poor still receive little access to justice.  The bottom 20 percent of the population receive 3.4 percent of the nation's income, but only a half percent of its legal resources.

As Bill Moyers recently argued in a speech at the Brennan Center for Justice, "America's social contract has to cover everyone, not just the wealthy."  Today this topic is at the forefront of political discussion.  The struggle continues.

Johnson's elegantly written book ends with a plea and a hope for a movement that expands beyond the legal profession.  "[I]f the United States is ever to 'establish justice' as promised in the Constitution's preamble, to make 'justice for all' a reality in this country not just a motto to mouth when reciting the Pledge of Allegiance, and to provide the nation's lower income population true 'due process' and 'equal protection of the law,' the right to equal justice and a lawyer when needed must become a legal guarantee.  Only then and in that way can justice be established for all and thus become, as it should be, an inherent right of citizenship."

A Devilish Inquiry

All of us in the legal profession make legal decisions.  But like everyone else, we are compelled to make moral decisions, not just within our professions, but also in our everyday lives.  Depending on one's point of view, these decisions, or choices, may be so insignificant they barely qualify for consideration.  The waiter brings you the check with an error … in your favor.  What if the amount involves a $1 error, or an omission of $75 for the wine you ordered and drank?  Do you point it out?  Does the amount matter?  Does it matter if the restaurant is upscale Beverly Hills and the waiter is snooty?

Another example.  When I bring my car in for service, I invariably have a discussion with the service manager after my car has been "serviced."  (Cars are sex objects, right?)  The service manager hands me the keys and reminds me of the questionnaire that will be e-mailed to me in a day or so. "Sure would appreciate it if you could check off 'excellent' for all categories."

I notice the car has not been washed and oil seems to be dripping from the undercarriage.  But because the service manager fixes the problem with haste, I tell him I will say that he is the best service manager ever.  But I will tactfully point out the problems when I fill out the questionnaire. 

The service manger seems to simultaneously smile and wince.  "If you say anything negative about your service experience, it will reflect badly on me and I could get fired."

"In other words, you want me to lie." 

"Oh no," he importunes.  "If you feel that way, just do not answer the questionnaire." 

So the service manager gets an "A" and one of the technicians (mechanics are apparently a lost profession at car dealerships) gets an "F."  But now I am not supposed to answer the questionnaire or lie and say everything was hunky-dory.  Should any of us be parties to this faux conspiracy?  That I have neither the time nor the patience to answer these questionnaires is beside the point.

I discussed this questionnaire phenomenon with a person I know in the "car business."  He opines that the service manager was telling the truth.  Too many negative comments on the questionnaires, in fact, will reflect poorly on the service manager, even though his actions may be blameless.  The questionnaire results are recorded by so-called independent survey companies.  A 99% approval rating for service goes a long way in an advertisement.  Unfortunately, my information comes from a source who has extracted a promise from me not to reveal his/her name.  Yet, on the few occasions I take the time to fill out such a questionnaire, I have generally not stretched the truth … an admission that maybe I have.  I really like the service manager.  Moral choices can drive us nuts.

         By us, I mean lawyers and judges.  Are we not held to a higher standard than others?  I pose this question because rules and guidelines for lawyers and judges cover a wider scope of coverage than issues relating to practicing law or deciding cases.  In California, when judges are "off the bench," they should still keep judicial ethics in mind.  Canon 2 of the California Code of Judicial Ethics requires that a judge "avoid impropriety and the appearance of impropriety in all of the judge's activities."  And Canon 4 cautions judges to conduct their "extrajudicial activities as to minimize the risk of conflict with judicial obligations."  Would lying fall into that category?  I know, it all depends on the lie.  But because judges decide credibility issues, Canon 2 should give judges pause now and then.

As I discussed in my last column, the New Jersey Supreme Court ruled that a part-time municipal court judge could not serve in that capacity and be a stand-up comedian in the evenings.  The court reasoned that this particular extrajudicial activity, among other things, demeaned his judicial office in violation of certain canons of judicial conduct.  I assume the satirical character he created for his comedy act, an obnoxious homophobic bar patron, had something to do with the court's decision.

Judicial service is gratifying and rewarding, but ethical canons necessarily limit our actions.  I am not complaining mind you, but lawyers apparently have less formal constraints in their everyday lives.  Ethical rules for lawyers generally relate to the practice of law.  I particularly like California Business and Professions Code section 6068(b), "To maintain the respect due to the courts of justice and judicial officers."  A similar notion can be found in the American Bar Association Canons of Professional Ethics.  Canon 1 admonishes lawyers to "maintain towards the Courts a respectful attitude .…"

If we took a random sampling of judges and lawyers and placed them in the earlier scenarios I posed, how do you think they would decide the moral questions?  No doubt there would be little difference between the two groups.  If judges fared slightly higher on the moral scale, it might be because of their awareness of the judicial canons of ethics that speak to a judge's extrajudicial conduct. 

In the next example I offer, we need not refer to canons of ethics.  I recently purchased an electronic keyboard and an amplifier at a store that sells those kinds of things.  The corporation that owns the store apparently operates under the firm conviction that customers patronizing the store are thieves. 

Parcels leaving the store are thoroughly examined, and after purchase, one's sales slip and the items purchased are thoroughly checked against each other by an unsmiling attendant.  Yes, I understand, many businesses operate under this assumption.  It is a "sign of the times."

My salesperson, who thought I was Methuselah, suggested I purchase an "insurance policy," not to be confused with an extended warranty, on the products I had just purchased.  But I asked my 14-year-old salesperson, "Why would I need such a policy when you just told me the products I purchased were durable and well made?"  The sales boy patiently replied, "When a new model comes out, you can turn in your old damaged one and get a new one."  "But what if it's not damaged?" I asked.  The look on his youthful face was one of incredulity.  He looked up at the ceiling before responding to the naïve question the elderly gentleman had just asked.  "Oh, it is bound to be and then you can get a new one."  I expected a gentle pat on the head.  And then it all made sense.  If you shop at a store that assumes you are a thief, you might as well act with the character of a thief and damage the product to get the newer model. 

         Most people I know, whether they are lawyers or judges, would pass on the insurance.  And how would someone even go about "damaging" an electronic keyboard or amplifier?  (Just kidding.) 

No matter.  This illustrates pervasive cynicism these days about the choices we make or are expected to make.

Why is this is happening?  Justice Antonin Scalia offered an answer.  In an interview with Jennifer Senior in New York Magazine last month, he unequivocally stated he believes in the Devil.  Though I seldom agree with Justice Scalia, I think he has been unfairly ridiculed for his belief.  Justice Scalia's Devil is for me a metaphorical concept, but no less real.  The Devil represents the tempting shortcuts that are offered on our journey through life.  So if we truly value our professions and ourselves, we will take a moment for reflection when we make our choices.

You Don't Have To Jump Out of an Airplane

When a joke takes the form of a riddle that begins with a question ("How many…?"), you know that a particular nationality, group or profession is in for derision.  Lawyer jokes are a typical example.  Thank heavens you do not hear them as often as you did in the past.  In the early 1990's, they were ubiquitous and iniquitous.  Harvey Saferstein, the State Bar president at that time, tried to blunt the onslaught with an editorial condemning the jokes.  It was a valiant but unsuccessful effort.  Of course I was deeply concerned about the unjustified flood of tasteless jokes about the legal profession.  Judges likely would be next.  I sensed the waters lapping against the courthouse steps.  Luckily the storm petered out, and the judiciary decided its cases relatively unscathed.  After the U.S. Supreme Court decided Citizens United v. Federal Election Commission (2010) 558 U.S. 310, however, I expected to hear a joke along these lines:  "How many Supreme Court justices does it take to weaken, if not destroy, our democracy?"  But perhaps the radical nature of the decision left people too stunned to joke.

Today other professions are in for ridicule.  It is de rigueur to bully viola players with offensive viola jokes.  Take for instance:  "How is lightning like a violist's fingers?  Neither one strikes the same place twice."  Or, "What is the difference between a viola and an onion?  No one cries when you cut up a viola."  Or, "What is the difference between a violist and a dog?  A dog knows when to stop scratching."  I am particularly offended by these jokes, because distinguished Los Angeles County Superior Court Judges Helen Bendix and Mary House are accomplished musicians, both of whom play the viola uncommonly well.  They are members of the Los Angeles Lawyers Philharmonic.  How unfortunate there is no Viola Players Association to which they could turn to defend their instrument of choice.  If only Harvey Saferstein played the viola.

I raise this subject to illustrate that numerous lawyers and judges have demonstrated extraordinary talents in areas other than law.  Retired Judge Aviva Bobb plays in the first violin section of the Lawyers Philharmonic.  Administrative Law Judge Stuart Waxman plays percussion in the symphony and vibraphones with a trio that performs regularly in clubs.  My colleague Justice Steven Perren is a fine singer and actor who has appeared in numerous theatrical productions and will be appearing this month in the Cabrillo Music Theatre production of "Kiss Me Kate" in Thousand Oaks.  And extracurricula activities are not limited to the performing arts.  Judge Anthony Mohr is a talented and successful short story writer.  Retired Supreme Court Justice Armand Arabian has parachuted out of airplanes with members of the military in friendly foreign countries.  Los Angeles County Superior Court Judge John Wiley sent me a photo montage of his perilous rock climbing expedition‑‑an endeavor almost as terrifying as deciding a summary judgment motion.

But getting back to the viola.  A wonderful defense of the viola appears in an article by Helen Campbell in the summer 2013 edition of the classical music magazine Listen.  Ms. Campbell describes the technical challenges facing violists.  She explains how the viola fills an important "supportive" function in the orchestra, "which means they fill in or double the harmony" when required.  What is particularly significant is that Ms. Campbell is not just a former professional violist, but, get this, "a former practicing attorney."  I can't say, but perhaps the viola and lawyer jokes drove her out of those professions.

Listen also featured an article about the famous pianist from Texas, Van Cliburn, who won the piano prize at the International Tchaikovsky Competition in Moscow in 1958 when the "cold war" was at its hottest.  Van Cliburn, who died in February of this year, hosted several piano competitions, one of which was an amateur competition held every four years in Fort Worth, Texas. 

A friend of mine, Lori Miller, produced an excellent film, "They Came to Play," about the fifth amateur competition in 2007.  The best performance of a post-Romantic work went to Mark Fuller, a litigation lawyer from Phoenix, Arizona.  And one of the second-stage semifinalists in the 2002 competition was U.S. Administrative Law Judge, J. Michael Brounoff.

Lawyers and judges do extraordinary things and demonstrate a wide range of talents.  But there are constraints.  Most of you have read about New Jersey lawyer Vince Sicari, who sits part time as a municipal court judge.  Not any more.  The New Jersey Supreme Court in a 7-0 decision held that Sicari's comedy and judicial career were incompatible and that he could not serve as both a municipal court judge and a comedian.  The court opined, among other things, that his comedic role as homophobic bar patron, for example, ran afoul of several Canons of the New Jersey Code of Judicial Conduct.  Canon 5 requires a judge to conduct extra-judicial activities in a manner "so that they do not:  cast reasonable doubt on the judge's capacity to act impartially as a judge; demean the judicial office; or interfere with the proper performance of judicial duties."  Sicari made the either/or choice in favor of show business.  You don't think writing a column...?  Let's not go there.  Forget I mentioned it. 

Retired California Judge John Rafferty does stand-up comedy with an "I was a judge" theme.  He relates amusing incidents in his courtroom over the past 25 years.  He wears a robe for the act.  Not sure if that is a good or bad thing.  But no matter, because he can satirize with impunity.  If someone doesn't like it, there is no bench off of which he can be kicked (or is it "which he can be kicked off"?).

So what do lawyers do who are not musically inclined, or are not cut out for repelling down cliffs or jumping out of airplanes?  How about pro bono service?  Professor Deborah L. Rhode points out in her article "Pro Bono in Principle and Practice," in the September 2003 edition of the Journal of Legal Education, that "[a] wide array of studies find[s] that regular volunteering is correlated with both physical and mental health.  Compared with the population generally, people who regularly assist others … have longer lives, less pain, stress, and depression." 

Case in point.  John Sharer, retired senior partner with Gibson, Dunn & Crutcher, was a prominent civil law litigator who tried a variety of cases in courts throughout the country.  He now teaches a litigation course at Pepperdine School of Law.  He wrote an engrossing novel set in World War II, "Honor Knows No Borders."  And he recently offered his pro bono legal services to win a new trial in a capital case in Alabama for a defendant convicted of first degree murder.  It is obvious to me that John believes in his client's innocence.  John does not display enthusiasm with abandon, but the inner satisfaction he feels from this significant victory shows.

This all serves to illustrate that although we are often defined by our professions, our lives, both professional and personal, can be significantly enriched when we pursue those other interests that arouse our passions.