Education for Judges- A Flu Shot

Yesterday I got a flu shot. No one made me get it. I did it on my own. Of course I could still get the flu. If so, I can take some comfort that at least I had tried to prevent it, and could rationalize that without the shot, my flu might have been more severe. But what if I did not get the flu shot and got the flu? I would have this demeaning discussion with myself. Despite my weakened condition I would be the object of derision and scorn heaped upon me by myself. It is not pleasant to call yourself an idiot. (For the benefit of the Daily Journal's refined readership I have omitted the adjectives that precede the word "idiot.") While in bed, shivering with chills, trying to swallow with a sore throat, I would have looked back months earlier and agreed that a mandatory flu shot would have avoided all of this.

But does that mean that mandatory flu shots are preferable? The subtle change in the hypo would not change my view because I had the benefit of hindsight. It is likely, though not a certainty, that I would have avoided the flu with a mandatory flu shot. I might not be so sanguine about a mandatory flu shot, however, when it is administered without the benefit of a glimpse into the future. The word "mandatory" does not sit well with most people. This includes judges. Now there's irony for you. Judges, like me for example, who make mandatory pronouncements daily that make people go to jail or pay money, or do something, or stop doing something, bristle when on the receiving end of "mandatory."

But wait a second. The doctor who is treating me for the flu attends mandatory continuing education programs. If my doctor did not take these programs or even voiced a strenuous objection to taking them, I would seek medical advice elsewhere. Most people profess to take the notion of education seriously, even high school drop outs. The insight usually occurs later in life. Education is mandatory for kids, and for an array of professionals including lawyers, doctors, accountants, veterinarians, mortgage and real estate brokers, to name a few.

So should mandatory education be required for judges? On October 20, the Judicial Council will consider recommended proposed Rules of Court that would require minimum education requirements for trial judges, 30 hours over three years. The devil may be in the details, but the rules can be modified and tweaked to satisfy a broad range of educational needs. But what of the concept itself? Judges on the trial and appellate level have voiced passionate concern over the issue, offering arguments for and against. The California Judges Association (CJA) through its Executive Board has expressed the firm belief that education is a "core duty of every bench officer," but is opposed to mandatory education.

California has rightfully earned a stellar reputation for having the most advanced and comprehensive judicial educational program in the world. Educational programs put on by CJA and the Center for Education and Research (CJER) draw record attendance. I have attended and taught at many of these programs and come away enlightened and renewed in my enthusiasm for my work.

With such high attendance and support for education from the vast majority of California judges, why are some so against mandatory as opposed to voluntary education? One primary concern is that mandatory education threatens judicial independence. But does it? The rules for mandatory education are promulgated by judges and will be implemented by judges. Judges have no say over what they can wear on the bench, but I hear no complaints that this undermines judicial independence.

Section 68110 of the Government Code requires judges at their own expense to procure a judicial robe which they shall wear when presiding over cases in open court. What's more, the Judicial Council prescribes the style of the robes. Rules of Court, rule 299 requires that the robe be black and extend in front and back from the collar and shoulders to below the knees, and have sleeves to the wrists. Moreover, the robe must conform to the style customarily worn in courts in the United States. Want to wear a short sleeved navy blue robe when the letters J-U-S-T-I-C-E on the front? A judge can do so at the dinner table, but not on the bench.

And what do we mean by judicial independence? In fact, we are dependent, and ironically, our independence depends upon it. We are dependent on the public we serve. I am not speaking about the unhealthy co-dependent relationships that psychologists speak of. Nor do I speak of the inappropriate dependence that would be reflected in judicial decisions that take into account the mood of the moment. This instead is a healthy relationship where judges take into account the public trust necessary to a free and independent judiciary.

True, candidates for judicial office undergo a rigorous examination concerning their suitability for this important office. The dedicated Commission on Judicial Nominees Evaluation (JNE) conducts an exhaustive investigation free from the influence of the appointing authority. But after a judge takes office the public can reasonably expect the judge to meet more than the minimum standards of competence and knowledge of legal principles. There is also the legitimate expectation that judges be cognizant of the diverse cultural mores of our communities and be aware of how the administration of justice is perceived by the public. Indeed, the commitment to mandatory education from the judiciary itself tells the public that judges take their awesome responsibility seriously.

It is true, that courts are constantly engaged in a process of education through the very act of judging. But educational programs give judges not only a comprehensive view of substantive law, but expose them to different methods of judging and help them become aware of how new technology and values in a rapidly changing world affect the administration of justice. Moreover, the excellence of the judicial programs now planned and taught by dedicated judges would in no way be diminished if the programs were mandatory. Forty-two states require judges to have mandatory education. Why not California?

Many judges in favor of mandatory education point out the "political downside" to rejecting such a proposal. We should not tell the voters that the rules that apply to other professions simply do not apply to judges. Should we appear as the stern Judge Angelo did to Isabella in Shakespeare’s Measure for Measure, Act 2, scene 2, “ . . . man, proud man, (and woman) Dressed in a little brief authority, Most ignorant of what he is most assured?” Should we hand this responsibility over to the legislature?

Some of my colleagues from the First Appellate District have endorsed judicial education for trial and appellate justices. They have remarked that “supplemental education programs administered by the judicial branch will affirm California’s commitment to judicial excellence and will enhance public confidence in the courts.”

The Judicial Council will vote on the proposal for mandatory education on October 20. We should avoid unpleasant consequences in the future. A mandatory flu shot can be a good thing.

Going to the Dogs

Dog- gone it, ( a euphemism for what I'm thinking.) To stay with the metaphor, I am dogged by complaints of people I know unleashing on me their dissatisfaction with perceived misdeeds of the judiciary. Not my misdeeds, mind you but those of others. They are barking up the wrong tree. Is every law abiding ethical CEO responsible for the Enron scandal? Is any judge responsible for the decisions of other judges? How, I ask you can I be held accountable for the occasional miscreant who appears on the scene?

Case in point. People are still complaining to me about the "judge" who several weeks ago, ordered a victim of spousal abuse seeking a restraining order to leave his court or risk arrest and deportation. Well, first of all, he was not a sitting judge. He was a Pro Temp, an attorney volunteering his time to "help out " the Los Angeles Superior Court with its caseload. It appears he didn't help the court, the victim or enhance the public's perception of how the court dispenses justice. But the Los Angeles Superior Court acted with alacrity. It figuratively ordered him to leave the courtroom, or more specifically, it removed him from the list of pro temp judges. The victim who the judge pro temp ordered to leave the courthouse, ultimately had her day in court and another judge granted her request for a restraining order. So a mistake was rectified and justice done. And I hope the public understands that this one isolated incident is not a reflection on the dedicated attorney volunteers who offer their expertise and devote their time to help the court.

Glad to get that off my chest. But on second thought I know about this incident only because I read about it. Judges are supposed to hear all sides of the story before making a decision and here I am making a judgment without hearing the pro temp's side of the story. True, he used bad judgment but could his motivation have been benign? He is reported to have mistakenly believed that he was helping the victim by alerting her to the possibility of arrest.

So why have I considered the sliver of a possibility that the ex judge pro temp may have had a plausible explanation for his actions? I think it is because judges of all stripes often take it on the chin for their misunderstood rulings. I remember back some thirty years ago, when I was a municipal court judge. Despite the awesome power we judges wielded in deciding misdemeanors, one thing struck terror in our hearts, the Appellate Department of the Superior Court.

Its presiding Judge, now a distinguished Judge on the 9th Circuit Judge Arthur Alarcon reminded us that for all intents and purposes the appellate department was our supreme court. That alone was enough to scare the daylights out of us. At this time before word processors were in use in the court system I thought the opinions were prepared and mimeographed by the typing class at Le Conte Jr. High School. "The left turn was safe. Reversed."

I recall the time a Commissioner's finding of guilt on a traffic infraction was reversed by the appellate department. The appeal by a pro per defendant stated adequate grounds for reversal. The defendant also alleged that the Commissioner made numerous inappropriate comments during the trial. The appellate department's opinion stated that if the allegations were true, the commissioner's conduct was unacceptable. But the alleged conduct had not been proved, much less shown any where in the record. I knew this commissioner and it was inconceivable to me that he could be guilty of these allegations.

This is just another indication that a judge's judicial life is not a bed of roses. Even judges who have passed away are not free from criticism. The famous Judge Charles Fricke who died in 1958 is still taking heat for the trial he conducted in the famous Sleepy Lagoon case in 1942 on which the musical Zoot Suit is based. People v. Zammora, 66 Cal.App.2nd, (1966). The Los Angeles Times recently devoted an article to him. Aug. 20th 2006. My friend Alice McGrath who assisted the defendants and their counsel during the trial argues that the manner in which Fricke tried the case reflected bias. Enter again my colleague Judge Alarcon who had tried numerous cases before Fricke, and read the trial transcript. He disagreed with this assessment, and points out that the reversal by the Court of Appeal was not based on bias or racism but error in the admission of evidence. The appellate court found the evidence insufficient to show defendants conspired to commit murder. Ibid at pg.201-202. The appellate court also chastised Judge Fricke for disparaging remarks he made about defense counsel in the jury's presence. Ibid at pg. 215.

Interestingly Judge Fricke's name appears in an article in the Spring/Summer 2005 newsletter of the California Supreme Court's Historical Society. The engrossing article by Kathleen Cairns is about the conviction in 1935 of Nellie May Madison for the murder of her husband. But for a commutation of her sentence by then Governor Merriam she would have been the first woman to receive the death penalty in California. Judge Fricke was the trial court judge and actually testified for the prosecution. The Supreme court in People v. Madison, 3 Cal.2d 671 (1935) approved of Fricke's conduct. It was proper for him to testify for the prosecution about a witness's statements about the interval between shots because that testimony "did not appear in the record and the trial court timed it." At page 679. Lest we be too quick to condemn Fricke, Ms. Cairns points out that the decision tells us much "about judicial attitudes and procedures in the 1930s."

But trial judges can be reversed, and on occasion chided by some uppity court of appeal. Even a graciously written reversal can be devastating to any judge. Recently I was reversed by the California Supreme Court. I was more shocked than upset. When I received the Supreme Court opinion, I said aloud to no one in particular, “Dog gone-it. How could seven intelligent people all be wrong?”

Just as I was about to howl about my sentiments, I thought back to what I had just said aloud. “Dog gone-it.” Of course that was it. What every misunderstood judge should have. A dog. Dogs don’t care about reversals or even affirmances. They are there for you no matter what. Their love is unconditional. For cat lovers, a weakness to which some including this writer have succumbed, it is your unconditional love for the cat that is mandatory. Ask any cat.

But dogs. They are good for judges because they don’t judge. A dog’s tail will wag for a judge that has been censured by the judicial performance commission. Well that may depend on the breed. I am talking about dogs and judges.

But judges can carry their relationship with dogs too far. Take, for example, Judge Noel Canon. See Cannon v. Commission on Judicial Qualifications. 14 Cal.3d 678. She was removed from the bench for some bizarre behavior, including having her dog sit in her lap while she conducted trials from the bench. Some of the dog’s rulings reflected unfamiliarity if not disdain for the Evidence Code.

When she was removed from the bench, Judge Canon's dog, (I think it was a high strung Chihuahua), is reputed to have made commercials to supplement her mistress’s income until a highly publicized dispute with Actor’s Equity ended that. But it does show a dog's devotion.

But I wonder if all breeds of dog show such loyalty to their owners. I have no question about Sergeant Preston and his Husky King. But do you think a Pomeranian would display the loyalty of Judge Canon’s Chihuahua? I mention this because of an ad I saw in the Los Angeles Times.

In thick bold white letters against a blue background, appear the words, “Pomeranian.” Beneath the letters is a photo of an orange Pomeranian sculpture, "actual size 8 3/4 in height. Yours for only $59.60. Allow 4 to 6 weeks for shipping after initial payment."

The ad pitchs the “meticulously crafted figurines” as if they were real dogs. It rhapsodizes about a Pomeranian’s “intelligent eyes” and “friendly expression.” It speaks about how this breed is “outgoing and friendly” and “always ready to play.” The ad then urges you to buy a “figurine” to bring the “irresistible charm of this beloved breed into your home.”

You can also get a black one if the orange one doesn’t appeal to you, or maybe get both. Or maybe get two of a kind. That way one won’t get lonely. The photograph of the head of the black Pomeranian is creepy. It looks a bit like a vampire bat. I haven’t seen all that many Pomeranians, but I am sure I never saw a black one. There are black labs, black poodles, black cockers, but are there really black Pomeranians? But I’m getting off track.

The ad raises some questions. Has any one seen a Pomeranian lately? Haven't seen any in my neighborhood. Maybe people are embarrassed to be seen with them. Would a misunderstood judge be cheered at the end of the day by a yapping, I mean barking Pomeranian? . I don't know but if the judge pro temp who ordered the victim out of his courtroom does not have a dog, I would be willing to send him a Pomeranian figurine.

Governor Does the Right Thing

Hooray for Governor Schwarzenegger!. Did I just say that, me, a Democrat? I voted for Gray Davis three times for Governor. And yet the first sentence of my column is a commendation for Governor Schwarzenegger. But what does my praise have to do with my party affiliation? Absolutely nothing. Maybe that is because sincere and well deserved praise, and criticism too, should stand on its own irrespective of party affiliation or other extraneous considerations.

Lest the preceding sentence introduce too sanctimonious a tone, let’s get back to Governor Schwarzenegger later. I guess you know where this is leading. It’s about that troubling judicial election last month.

No doubt you have heard and read quite enough about the election of Lynn Olson to the Los Angeles Superior Court. Editorials, articles, opinion pieces, and letters to the editors have exhaustively dissected this “upset” election ad nauseam. So why am I writing about the same thing a month later? See, I was out of town when the election results were posted in the Daily Journal. When I learned the results upon my return, I was numb. It was the same feeling I had when Judge Alfred Gitleson was defeated in a judicial election in 1970, the year that marked the end of clear election sailing for judges. His opponent had been rated "unqualified" by the Los Angeles County Bar Association.

I had to wait for the numbness to wear off this time before I could process the news that Ms. Olson had defeated Judge Janavs. Then I was overcome with guilt. You see I heartily, enthusiastically endorsed Judge Dzintra Janavs. This was an unsolicited offer. I endorsed her because along with countless others, I know her to be a judge of exceptional ability. My motives were partly selfish. She brings distinction and excellence to the bench. Judges of her caliber enhance the judiciary. Months ago I was at a legal function where I found Judge Janvas standing near me at the table of munchies. We chatted and I said while nibbling a carrot stick, “By the way I would be glad, in fact honored to endorse you-- if you don’t think it would be a liability.” A little joke there at the coda. I think she understood me. She graciously laughed, and thanked me for the endorsement. Perhaps this sounds ego-centric, but maybe there was some truth in my feeble humor. You don’t think my endorsement contributed to the result do you? Hello! I didn’t hear your answer.

Whatever my contribution, I have had time to reflect on this terrible outcome. I have heard the accusations against Ms. Olson and her responses, and read the many editorials, articles, and letters to the editors concerning this disturbing election. And having a few weeks to mull things over, I offer a few observations. My motivations are selfish because I want to divert attention away from my being a possible cause of this election gone awry.

So let’s get back to what I was saying earlier about Governor Schwarzenegger. What was it? Oh yes, I was praising him and I might have said something about my being a Democrat. That just sort of slipped out. Oh, now I remember. I said something about praise or criticism should have nothing to do with party affiliation. Is this point of view a reflection of naivety or my profession? A politician’s party affiliation is usually pertinent and relevant to the voters, but a judge’s party affiliation is not relevant.

“Not relevant to what?” a nameless person who is a composite of the general public asked me.

“Not relevant in the mix of criteria you use to evaluate a judge’s performance. What is that you are muttering?”

“Give me a break.”

“Nice colloquialism. Go ahead. Take a 'break' to elaborate."

“Thanks, dude. But don’t tell me party affiliation is not relevant in the decision to appoint judges.”

”Yes, often it is, but not always. But once the Republican, Democrat, Independent, Wobbly, whoever takes the oath of office, then party affiliation is not relevant.”

“Now we are back to square one. Not relevant to what?”

“To the decisions and rulings the judge makes.”

“We the composite public just don’t buy into that. And you, Judge, just admitted to being a Democrat.”

“Yes, but only to illustrate that my party affiliation has nothing to do with my praise of the Governor in this instance. In United Sates v. Nixon, 418 U.S. 683 (1974), for example, president Nixon's appointees to the United States Supreme Court ordered him to produce certain tape recordings and documents during the Watergate investigation.

“You sure they were Republicans?”

“Please.”

“O.K. but that was an exception.”

“No it isn’t. Most judges make every effort to put aside their personal beliefs and prejudices and decide cases on the merits, the facts and the law, and not their preferences.”

“Even if I accept your shaky proposition, if judges had their party affiliation listed on the ballot, I would vote for the ones that belong to my party.”

“And what is your party?”

“Judge, if you would pay attention, you would remember that I am a composite, a number of parties, and points of view rolled into one.”

“So a part of you voted for Lynn Diane Olson, the non practicing attorney who makes bagels instead of legal arguments, the candidate who the Los Angeles County Bar Association rated ‘unqualified’ to sit on the bench.”

“Most of me did. And by the way, to bring up bagels is a cheap shot and detracts from the objectivity of this interview.”

“I suppose you're right. Sorry. But how could ‘most of you’ vote for someone who is not qualified?”

“Most of me didn’t even know what her rating was.”

“The judge she defeated, Judge Dzintra Janavs, was rated “exceptionally well qualified” by the County Bar Assoc. She is one of the most able, conscientious and well respected judges to sit on the Los Angeles Superior Court.”

“Most of me didn’t know that either.”

“Did you know that Judge Janavs is a Republican?”

“Yes, that’s why a large part of me voted for Olson.”

“You irritate me no end.”

“Got something against Democracy?”

I didn’t ask any more questions. This was about one of the most exasperating interviews I have ever conducted. Sure democracy is not all that tidy and people get to vote however they wish and for the most arbitrary reasons. But it is perfectly legitimate to ask and question how this election turned out the way it did. In the Crawford case, Judge Gitleson decided that the law compelled him to order the school board to adopt a desegregation plan for the school district in Los Angeles. He lost the election, not because he was a bad judge, but in fact because he was a good judge. His party affiliation had nothing to do with his decision.

Why did Judge Janavs, another good judge lose the election? Ms. Olson, a Democrat, has been reported to say that she chose to run against Janavs because Janavs is a Republican, and not because of Janavs' foreign sounding name. That may be so, but there is still a triable issue of fact about how and why this election was won by Ms. Olson. Ms. Olson may be a Democrat, but her party affiliation tells us nothing about her qualifications to be a judge. Campaigns, however, can give us insight into character, integrity and values, important qualities we look for in judges and office holders.

I acknowledge that some lawyers voted against Judge Janavs because they disliked her rulings in rent control cases. I cannot speak to the legitimacy of their criticism, but should that be the basis to vote for an unqualified candidate who has never made a judicial ruling in her life? Time will tell what caliber of judge Ms. Olsen will be.

But the wrong that this election created can and will be corrected. Governor Schwarzenegger plans to re-appoint Judge Janavs to the Los Angeles Superior Court. An editorial in the Los Angeles Times last month, chalked up the defeat of Judge Janavs to “politics” and mildly rebuked the Governor for re-appointing Judge Janavs. The Times complained that we cannot pretend to respect the voters when we overturn their decisions. Nonsense. The voters got the candidate they apparently wanted. The voters also elected the governor who has the power to appoint judges. Here, the governor acted in the public interest. He insured the high quality of the Los Angeles Superior Court by keeping Dzintra Janavs, one of its most able and conscientious judges on the court. That’s good politics. And that’s democracy.

A Catty Legal Problem

Ask lawyers and their clients this question: Judges know the law-true or false? Their answer depends upon whether they won or lost their last case. I’m not even sure what it means to “know the law.” In fact, judges often rely on lawyers to educate them about the application of law to the facts of a particular case and hope to discern when they are mis-educated.

But many people think that judges are presumed “to know the law.” If judges knew the law so well, why do they ask so many questions? “Counsel, would not collateral estoppel apply here?” More often than not this isn’t a mere rhetorical device to stimulate discussion. But have you ever heard a judge outside of the courtroom admitting he doesn’t know the answer to a question, legal or otherwise? Has anyone ever heard a judge ask a lawyer at a bar function to explain what is a retraxit?

By now dear reader you may have guessed that I am leading up to something. I have a legal problem and I don’t know my rights. It is easier to make this admission to you, anonymous reader, than to a person standing before me whose stifled laughter I would notice.

My legal problem can be summed up in one word-CAT, not a tractor or Computerized Axial Tomography, mind you. They at least do some good and they don’t scratch furniture. O.K. I am a little upset. So just pretend I am a client sitting across the desk from you. If you are not a lawyer, pretend anyway. If I include facts that are not pertinent, please bear with me. Remember, I am a client.

So here is what happened. We had this cat, Boz. He showed up at the Court of Appeal, a mere kitten, about 16 years ago. So I took him home and he has been with my wife Barbara and me ever since, that is, until he died about a year ago. He was ill, but we made the last several months of his life comfortable. For example, we held off remodeling our house until he passed on. I don’t have to tell you how much construction costs increased when we finally began the project.

After the passage of an appropriate time, we had planned to get another cat to fill the void in our lives left by Boz. If a spouse dies, you don’t just go out and get married the next month. But cats are animals, selfish ones at that, and the appropriate grieving period is much shorter than it is for humans. Twenty-four hours is a little tight. So we thought we would wait a week or so.

There must be something in our karma, or maybe it has to do with our astrological signs, or maybe the word goes out in the feline community when there is a vacancy at the Gilbert residence. It never fails: cats always show up on our door step just at the time we are contemplating getting one. I don’t even know what it means to buy a cat. Do people actually buy cats? I wouldn’t be caught dead with an expensive Persian wearing an emerald collar around his neck.

Anyway, as ironic as it seems, a lovely elderly lady who lived up the street died around the same time as Boz. She didn’t exactly have a cat, but one lived on her roof for about a year. Her caretaker fed the cat, not on the roof of course. The cat came down to get her meals. During the week they wouldn’t let the cat in the house because the caretaker was allergic to cats. But on the weekend the lady’s daughter drove up from San Diego to relieve the caretaker who was off Saturday and Sunday. The daughter would let the cat in. I bet that caused havoc with the caretaker when she came back on Monday. But that is neither here nor there.

So when the mother died the daughter was panicked about what to do with the cat. She wanted to take the cat with her to San Diego, but thought it would be too traumatic, either for her or the cat, I'm not sure which. The daughter begged us to take the cat. She told us that when the cat first showed up it had a collar and a tag with a phone number. When she called, the kid at the other end of the line said they didn’t have a cat and hung up. So doesn’t that mean it was O.K. for us to take the cat?

I brought the cat over to our house. She, yes, this was a she. We always had males. I can tell you without hesitation male cats are much better tempered than females. I carried her and she actually growled. I bet she thought she was a dog. So I held her tight and brought her into the house. She checked the place out and knew immediately she had a good deal, food, lodging, toys and a medical plan. She purred and meowed and decided right then and there to stay. Simple as that. Barbara even gave her a name. Opus or Oh Puss. Get it?

Opus was temperamental as all get out. But she took to Barbara right away. You would think they were sisters or something. They hung out together all the time, carrying on with their private conversations, snuggling in bed. Most of the time Opus didn’t have much use for me, except when she was hungry. I get up earlier than Barbara, and Opus would follow me downstairs for breakfast. That made no sense because we had dry food in her dish at all times. She would look at me and meow for food that was already in her dish. I don’t know if this cat was a moron or just liked seeing me do things for her. I didn’t even have to put new food in her dish. I just stirred the food around a little and then she would chow down. Go figure.

We bought her a collar and dozens of toys that she drenched in cat spit and left all over the house. She was selfish and egocentric but on occasion thought to redeem herself by reciprocating for our generosity. For example, on various occasions she brought us disemboweled rats, lizards and birds, some still clinging to the last threads of life. That was sweet I suppose, but depositing them on our bed in the middle of the night did not allow for a restful night’s sleep.

After close to a year of doting attention, we took her to the vet for a checkup. Yes, she had been “fixed,” (a term I find particularly offensive) and the vet tech gave her shots for a cost of $176. I have been told we got off cheap. A few days later Opus went out for an afternoon prowl and simply disappeared. Barbara was heartbroken. We searched the neighborhood, inquired of residents in a two block radius of our home, searched garages and sheds where she might have been trapped. Nothing.

I blamed this loss on coyotes who I was certain had dined on her. But as it turns out, the coyotes did not eat her. Six weeks after her disappearance she shows up, her fur straggly and matted. Although she was grossly overweight, she still begged for a handout. She wore a new collar on which was attached a tag and a phone number. Barbara called the number to inform whoever answered that she or he had our cat and thanks for taking care of her.

The lady at the other end of the line lives on an adjacent street no more than 100 yards from our house and claims that "Snookie" (her name for Opus), is and always has been her cat who has been missing for (are you ready for this?), two years and she would like to come over and get her. Rather than argue over the telephone, Barbara gave the lady directions to our house and she said she was coming over. An hour later (that’s how long it took to find our house which is half a block away), she came in her SUV with her 9 year old daughter who had allegedly been heart broken over the loss of “Snookie.” For two years? Give me a break.

I was ready for some serious negotiations when she whipped out a photo album showing Opus or "Snookie" as a kitten, and then as a mother nursing her young. One of her kittens who is now a grown male, Rex, and still living at his place of birth, was purported to have amorous inclinations towards his mother before she was “fixed.” That’s cats for you. But to be perfectly honest the photos were convincing. Opus and Snookie are one and the same. No doubt about it. Add to that the presence of a pouting 9 year old daughter and I knew a successful negotiation was as likely as President Bush admitting to a mistake.

In utter defeat I led the mother and daughter upstairs where they scooped up the sleeping Opus, who I think growled, and left with a curt good bye and no offer to pay the recently incurred vet bill. It is obvious that the overweight Opus is not eating proper food. And she hasn’t been brushed since she lived with us. That seemed a good basis for getting her back. I did some research, violating the rule about having an ass for a client, and it was not helpful.

In an opinion out of the second district, In re Marriage of Isbell, Willoughby (2005) authored last year by my colleague, the now retired Justice Nott, the appellate court concluded that in a marital dissolution action there is no authority to support who should get custody of Emmit the cat based on the best interest of Emmit. Instead, the court opined the only consideration is whether Emmit is the separate property of the wife. Luckily the opinion is unpublished and therefore not citable.

In another unpublished opinion, also from the Second District, my colleagues in Division V were of no use. The justices had their backs up, about whether a cat who bites should be tethered. In Goldshine v. Lafferty (2004) the appellate court acknowledged out-of-state authority that holds it is not abnormal for cats to bite under the right circumstances. For example in Lee v. Weaver (1976 195 Neb. 194, 237 N.W.2d 149) the appellate court found it not surprising that the cat who growled at the housekeeper’s vacuum cleaner and broom would one day bite the housekeeper. Opus growled at me and the vacuum cleaner on occasion, but I cannot say she bit me. And this is where George Bush and I are of like mind. I bet he agrees that she would have bitten me if she could. But getting damages for infliction of emotional distress might be a stretch.

Then I found a recent case directly on point. Unfortunately, it is of no use. It’s from Texas. In Willick v. Deastadeak (183 S.W. 3d 92, Tex.App. Dallas, 2006), defendant found a kitten shivering in the rain and cold in front of his house. He took cat in and nurtured him back to health and incurred vet bills. Over a year later, plaintiff, the original owner who lives next door, saw the cat in the neighbors window. Both sides want the cat. Neither will accept money. The Justice court ruled in favor of new owner who named the cat "Biscuit." On trial de novo court ruled in favor of original owner who named the cat "Sweet Pea" and awarded $80 damages. The Court of Appeal ducked the issue by deciding it lacks jurisdiction to hear the case. We might have had an answer if the damages had been at least $100.

I called my friend, the ancient but still wise Miss Anne Thrope who once wrote a legal advice column for the Police Gazette. Her advice was as follows: “Get over it and get on with your life.” I don’t believe she adequately researched the problem. If you agree with her, please don’t bother to write.

Dreams of Judging Can be a Nightmare

You know the story about the patient relating a terrible nightmare he had had the previous night. “Doctor, it was horrendous. I dreamed you were my mother.” The doctor replied that indeed it was a disturbing dream. “What did you do after you awoke from the dream?” she asked. “I woke up in a cold sweat, took a shower and had breakfast.” “What did you have for breakfast?” asked the psychiatrist. “Coffee and a piece of toast.” “You call that a breakfast?”

A similar incident occurred in my home recently. At breakfast my wife told me about her frightful nightmare the night before. “I dreamed that I, not you, am the judge. There I was in my robes, and . . . ” What did you feel? I asked. “Don’t interrupt when I’m speaking.” “But I’m your husband, I always interrupt.” She then did something quite unexpected. She waved a finger in front of me. “One more outburst and you’ll be in contempt.” I let her go on. Finally she let me speak. “I read somewhere that . . . ” She interrupted . . . “that’s hearsay, inadmissible.” “But we are just having a discussion,” I said. “Overruled.” I said something else. The cat objected and she sustained the objection. I kept speaking and she repeated in a louder voice, “Sustained!” Was that her? I looked around to see if the cat had said anything.

Those readers who have not donned judicial robes might question whether my wife’s dream was in fact a nightmare. They might believe that the authority she exercised reflects the awesome power and respect real life judges command.

Let me set you straight through an example. I had this idea for a new law related reality show. Yes, I know that the recent reality show, “The Firm” went down in flames. Well what do you expect? The emphasis was on trial lawyers and their pathetic efforts to rout their opponents. Yawn. The show would have been a rousing success if the focus had been on the judges instead of the lawyers. My idea for a reality show is based on an old radio show, popular about 60 years ago, called “Queen for a Day” emceed by Jack Bailey.

It’s hard to believe, but in those days the contestants were only women. The winning contestant was the one with the most sympathetic hard luck story. “My job interview at the telephone company was a disaster. They were about to test my voice but as I sat down to speak into the microphone my nylons tore and I shrieked ‘operator.’! I didn’t get the job and now the bank is threatening to foreclose on my bungalow.”

The winner was crowned queen for the entire day. Jack Bailey would recite the itinerary for the magical day of the queen’s reign. “Your majesty will be chauffered to lunch at the Brown Derby on Vine Street, after which you will be whisked off to Bullock’s Wilshire, (now a law school) for an afternoon of shopping. A mid-afternoon snack at Pig N’ Whistle and later dinner and a show at the Mocambo where you will be escorted by Cesar Romero or George Raft, if you are not too tall. ”

So here’s my idea. A reality show that gives deserving lawyers who have lost a disproportionate share of cases due to bad rulings the opportunity to become “Judge for a Day.” The emcee will announce to the winner what is in store for her or him, and then we will actually witness the judge’s activities throughout the day. “Before sunup your Honor will be whisked off to the court house in early morning heavy traffic. Once at the courthouse you will wait for the private judge’s elevator, and wait and wait until you realize it doesn’t work and then climb ten flights of stairs to get to your chambers, where it is freezing cold and piles of motions sit on you desk waiting for your review.

But first you have a morning settlement conference. You patiently craft a settlement proposal that does justice for all parties. After you have gently cajoled and tried amiably to persuade the parties to settle, the recalcitrant lawyers and their obstinate clients mock your efforts, refuse to settle, or even talk to one another, threaten to file additional causes of action against each other and storm out of your chambers.

You then take the bench for the morning law and motion calendar and hear dozens of motions, few of which are written in English. These include a multitude of summary judgment motions one of which contains six thousand issues of disputed fact. The lawyers vilify one another in their briefs and oral argument.

Then you will continue with the trial you have been trying to conduct. You promised the jury it will end this day, but a key witness under subpoena has not appeared. The witness, a single working mother with three minor children is vital to the case, and the attorneys are pressing you to issue a bench warrant. A member of the press sitting in the courtroom is busily taking notes.

You take a recess and peruse in chambers the charges brought against you before the Judicial Performance Commission by the pro per against whom you sustained the demurrer to his complaint which alleged on information and belief that the mayor is trying to kill him.

It’s now time for lunch. You are due to install the officers of the Left Handed Lawyers Bar Association. You will arrive at the local hotel where the gala event is taking place just as they serve you the delectable entrée of chicken fried steak. That evening you attend a cocktail party sponsored by Citizens Against Judicial Abuse where guests cross-examine you about the Rodney King case and Judge Alito.” I could go on, but my show idea was rejected in favor of another show called “Test Pilot for a Day.”

This proves that being a judge is not all it’s cracked up to be. Our power is limited. Some people have real power. Take for example the baby naming official in the Czech Republic. Friends of mine who are citizens of that country recently had a baby. A Czech baby must have a name that is listed in the book of names. If the parents wish to name their baby some other name they must get approval from the official “Naming Person.” She decides whether or not the name is legitimate, not the baby mind you, but the baby’s name. Sure, you can name your baby whatever you wish despite the naming person’s disapproval, but try and get a birth certificate. My friends named their baby a name that does not appear in the book of names. Luckily, the Naming Person went along. My respect for the baby’s privacy does not permit me to reveal the name. Her gurgles and cooing could be monitored by governmental officials.

American judges do not have the power of the baby naming official. Sure, people stand up for us when we enter the courtroom but that is only because a bailiff orders them to. Standing up for us literally is far different than doing so metaphorically. Getting up when you are sitting down is annoying, but today people do it for everyone. Every performer, however mediocre, gets a standing ovation. Rock performers, opera singers, mimes, organ grinders, jugglers, weather forecasters--they all get standing ovations.

I think it impolite to leave as the curtain comes down at the opera for example. We can at least stay and express our appreciation for the performers, but is everyone deserving of a standing ovation? The person in front stands up and you have to stand up to see the singers bow. And soon the entire audience is on its feet. Elderly people have to be awakened and helped up by their caretakers. It’s as bad as attending a football game. A good play and everyone is on their feet screaming. I see most of the game by way of instant replays on the giant screens above the end-zones.

But, on the other hand, it sure makes the performers feel good. I therefore thought about instituting standing ovations during oral argument at the Court of Appeal. Not for the lawyer’s arguments mind you. Who is going to applaud? Clients seldom attend sessions of the Court of Appeal, and certainly not other lawyers in the courtroom who are far more concerned about their own cases. No, I wanted a standing ovation for the justices. In my division we are known for asking snappy, quirky questions. It might be a bit time consuming for the ovation to occur after each argument. But waiting until the end of the calendar leaves an empty courtroom save for the lawyers arguing the last case.

I guess this is just another forgettable idea. I then thought about encouraging sustained applauds when we take the bench at the opening of the court session. The “APPLAUSE” sign used on Jack Bailey’s Queen for a Day show might be available on E-Bay. I decided to sleep on this last idea before acting on it but had a terrible nightmare which convinced me to reject that idea as well.

I dreamed I was a lawyer appearing on a law and motion matter. The judge I appeared in front of was me, rudely asking pointed questions. I awoke in a cold sweat. What could be more horrific than me appearing before me? I shuddered and realized neither of us deserved a standing ovation. I suppose this all proves that power, absolute or limited, has little to do with respect. Respect, like anything else worthwhile, must be earned. Doing our work as best we can without thinking about respect is probably the best way to get it. If you think otherwise, you’re just dreaming.

Stretching The Parameters (Yikes) of Language

"Sounds like!" I said . . . screamed . . . that’s what I said, but what I did is . . . scream. Maybe shriek is what I did. Whatever. (Strike "whatever.") So I shrieked, no I think "shouted" is better. I shouted, "parameter is not the same as perimeter!" They pulled my hands off the neck of the research attorney who had written, "Within the parameters of our standard of review." Luckily she didn’t fight back. I hate words that come from disciplines I cannot understand even if my life depends on it.
Dictionaries do not agree on the meaning of "parameter" . . . I think. Webster's Third New International Dictionary offers this illuminating definition: "The relative intercept made by a plane on a crystallographic axis, the ratio of the intercepts determining the position of the plane." If that isn't clear, try the Random House Dictionary of English, 2nd edition that explains that "parameter" is "A constant or variable form in a function that determines the specific form of the function, but not its general nature as in f(x)=ax, where a determines only the slope of the line described by f(x)."
In a measured voice I told the research attorney, "Parameter" is for mathematicians, (or some related field) not judges . . . or their research attorneys. You used "parameter" because it sounds like "perimeter."
She momentarily stopped massaging her neck with lotion and coolly delivered this riposte. "Current usage allows for a broader use of the word. It is quite acceptable in educated circles to use ‘parameter’ to mean ‘boundary’ or ‘guideline.’"
Maybe so, but not in my circle. Granted, that language and usage changes; it is unseemly for a word to acquire a new meaning because it sounds like another word. The period of transition can wreck havoc. Take for example what happened to the transformation of the word "evacuate" in my neighborhood newspaper. A front page headline told of an "armed old man bandit" who robbed a local bank. Put aside for a moment whether a bank can be robbed, and that I was incensed to read that the suspect’s age is somewhere between 50 and 60-- just call me Methuselah. No one whose age falls in the decade between 50 and 60 is old. Got it?
Sorry. I got a little hot, and off track. To get back to my point. The article describes the aged robber as victimizing "multiple tellers" at various local banks over the past several months. Come to think of it, he could have victimized various tellers at multiple banks. But anyway just last August the elderly bandit "robbed" Washington Mutual. He entered the bank with a gun and threatened to detonate a device that looked like a pipe bomb. The article then states, and I quote, "The employees were ejaculated" and "the area sealed off." Some employees asked the robber when he would call again. Others lit a cigarette. Jay Leno thought the robbery had occurred at a sperm bank.
Language is indeterminate. Even when the right word is used, meaning suffers if the speaker fails to clarify the context. To be understood we must be precise. At a neighborhood restaurant I ordered soup and stressed that I wanted my soup "hot." The soup came lukewarm, but so peppery I had to drink four glasses of ice water. I like my soup hot in temperature, not spicy.
A reporter friend of mine once interviewed the winner of a beauty queen pagent. She asked the interviewee how it felt being the new reigning queen of an artichoke festival. The queen gazed at the interviewer and with a beatific smile, her teeth gleaming in harmony with the zirconium crown on her head said, . . . wait, first let’s see what the reporter wrote in the paper. The beauty queen said, "I feel odd." The next day the outraged beauty queen called to complain that she had been misquoted. How did the beauty queen feel? She felt "awed," perhaps an odd way to express the overpowering emotion at being crowned queen of anything, especially artichokes.
What we write in opinions, statements of decision, briefs and motions may have a profound effect on the outcome and the direction and shape of the law. "Sol rented the store." Was Sol the lessor or the lessee? The context might explain whether Sol was collecting or paying rent, but the sentence standing alone doesn’t tell us.
Many years ago I began an opinion with this sentence. "Sometimes a defendant’s rights fall between the cracks. Here they fell in the Grand Canyon." Luckily I caught the error before the opinion was published. My comparison between a crack, as a crack in the floor, and that enormous crack in the earth known as the Grand Canyon was a failed metaphor. If the defendant’s rights fell between the cracks in the floor, then his rights were preserved because they did not fall in the cracks, just the opposite message I wished to convey. Through harmless oversight, rights of a defendant that fall in the cracks could well be non-prejudicial. But rights that fall in the Grand Canyon might even get a reversal from Justice Thomas.
But it is easy to be hard on those who make an offhanded remark that on reflection sounds ridiculous. This brings me to a list of quotes my friend Dr. Joyce Weisel Barth recently sent me via e-mail. The quotes seemingly sound foolish. I say "seemingly" because despite my obdurate position on "parameter," I have tried to tease a plausible meaning from the speaker's words. Unlike staffers at the New Yorker Magazine who gleefully expose solecisms, non sequiturs, misplaced modifiers and malapropisms that pop up in various publications throughout the country, I will be more forgiving, unless they misuse "parameter." My willingness to so extend myself stems from the likelihood that sooner or later, my name will be among those who have been held up to ridicule. Samuel Goldwyn, Casey Stengel and Yogi Berra, make room.
Take this quote attributed to Philadelphia Phillies manager, Danny Ozark. "Half this game is ninety percent mental." Maybe the math works. If Ozark is speaking about the first half of the game, then 10 percent is brawn or luck. But what of the second half of the game? The second half could also be 90 percent mental, but after a player has spent so much of his mental energy during the first half, the second half could be 20 percent mental and 80 percent whatever. (Strike "whatever.") In fact, my research attorney, Peter Cooney believes that half the game could be ninety percent mental and 100% physical. He is right, and he never uses the word "parameter."
Here’s a quote attributed to Marion Barry when he was Mayor of Washington D.C. "Outside of the killings, Washington has one of the lowest crime rates in the country." Petty theft is down 300 percent.
Dan Quayle has taken his share of hits. I think it’s unfair that he is mocked for favoring California. He is reputed to have said: "I love California. I practically grew up in Phoenix." No wonder he loves California. And besides, it’s a great place to eat a potatoe.
Joe Theisman, NFL quarterback and sports news analyst tells us "The word ‘genius’ is not applicable in football. Genius is a guy like Norman Einstein." I would add Norman to the list that includes Rudolph Newton, Jasper Mozart, Morton Freud, and Jimmie Picasso.
Al Gore once warned: "We are ready for an unforeseen event that may or may not occur." It would take someone like Norman Einstein to discover an event that may not occur.
The Department of Social Services of Greenville, North Carolina sends this cheery notice to the moribund. "Your food stamps will be stopped effective March 1992 because we received notice that you passed away. May God bless you. You may reapply if there is a change in your circumstances." Even this message is not as ridiculous as it sounds. Note this reply. " I wish to reapply for food stamps. Sincerely yours, Lazarus."
When Mark Fowler was FCC chairman he offered these encouraging words to patients using a heart monitor. "If someone has a bad heart, they can plug this jack in at night as they go to bed and it will monitor their heart throughout the night. And the next morning when they wake up dead there will be a record." The manufacturer is working on a jack that monitors the heart without killing the patient.
It would also be salutary if we do not kill the language. But we must allow it to grow and change within flexible parameters, I mean boundaries. Whatever.

Law Firm Breaks Up-This one a Reality Show

“A wonderful thing happened after the second episode of the reality series, The Law Firm aired a few months ago---it was cancelled.”

This is the opening sentence of a review written by my decrepit friend the ever ancient Anne Thrope. Miss Anne, as she likes to be called, once worked as a ghost writer, I mean staff attorney for the United States Supreme Court. Perhaps this is apocryphal, but she is reputed to have chastised Justice Taney for his infamous Dred Scott decision. From time to time I have called upon Miss Anne, when she is alert, to contribute to my column. Her decades of experience make her uniquely qualified to offer advice to troubled attorneys and judges. And that has been her primary contribution in the past.

But astute reader that you are, you have accurately perceived that today’s column is not of that genre. And no doubt you are asking yourself why I simply did not write the review myself. The simple answer is that I have a near pathological aversion to “reality” shows. Most of these shows highlight the baser human characteristics of duplicity, mendacity, envy, betrayal, corruption, anger, and calumny, to name a few. Yes, these traits are not imaginary, but I think that portraying them as the salient characteristics of human nature skews reality.

My bias would surely hinder my writing a balanced review of The Law Firm. True, columnists are expected to express their views, but my distaste for this genre could distort my account of the show to as much of a degree as I believed the show skewed its portrayal of the legal system. So I turned to my old pal Miss Anne to enlighten my readers.

This is what follows Miss Anne’s unequivocal opening sentence:

“Rumor has it that subsequent shows already taped will be shown on NBC’s cable channel Bravo. Hardly an apt term to characterize the series. There isn’t a 'Boo' Channel is there? If watching tyro lawyers stumbling over their irrelevant questions to parties with frivolous lawsuits is what legal practice has come to, then Dickens was right. It is not just the law that is 'a ass,' but so are we for watching the degradation of a grand profession. To think my caregiver awakened me from a sound stupor to watch the entire show. This was a sacrifice for which this reviewer deserves commendation.

“Describing the show from A, ‘awful and atrocious' to Y, had to stop at Y, there are no derogatory words beginning in Z, except maybe zombie, which is what I felt like after watching the show. Y gives us 'Yahoo,' 'yikes,' and 'yuck.'

“The senior partner of the firm, the famous litigator and TV analyst Roy Black is, I mean was, the senior partner of the firm. He oversees a bevy of newly admitted lawyers who divide into teams to litigate real' cases with 'real' clients presided over by 'real' judges, retired judges that is. A clause in their contract said, 'WARNING-APPEARANCE ON THIS SHOW MAY BE DETRIMENTAL TO PRIVATE JUDGING CAREERS.'

"It is rumored that in one episode, the legendary Judge Broadman, known for his unorthodox sentences in criminal cases, issued a unique ruling in a civil case. He ordered the CEO of a corporation who had defrauded the shareholders to wear a Norplant device for life. Broadman reasoned it would be detrimental to society should the CEO pass on to her offspring a genetic disposition for dishonesty.

“I wonder how the judges recruited for the show were conned, I mean induced to participate in this series designed to reveal how brand new lawyers prepare for cases that go to trial. That should have big audience appeal. Already I was suspicious. What law firm would allow newly born lawyers in shell shock from the bar examination to actually try a case? The malpractice premiums alone could lead to bankruptcy.

“Like other reality shows, this one caters to the audience’s desire to see someone sacrificed, destroyed, humiliated or ruined, a sport the Romans carried to extremes before the fall of the empire. Are we far behind? The lawyers who screw up the most are told to turn in their Westlaw passwords and take a one-way trip in the elevator to the lobby. No lifelines on this show.

"We see young associates in a law firm preparing for two cases. Two lawyers are on one side and two on the other. One case involves a plaintiff suing his ex-friend for putting up a gag 'wanted' poster in his small convenience store where most patrons know plaintiff. The poster accuses plaintiff of belonging to a terrorist organization called 'EAT ME.' The poster is so obviously a bad joke that even George Bush wouldn’t have sent this plaintiff to Guantanamo. The young associates interview witnesses and prepare for trial. They disparage their opponents and focus on weaknesses in their personalities. Mmmm, maybe it is like real life. Defendant lawyers lose the case and the trial judge, in an outburst of creativity, threatens to impose punitive damages on defendant if he doesn’t immediately apologize to the plaintiff. Forget that punitive damages were not pled or prayed for. Even Judge Judy would have second thoughts about doing this.

"Another case involves arbitration. A savvy, business oriented dominatrix sues the person she hired to create her website. The distinguished and unflappable Judge Dion Morrow sensibly rules that the contract is too vague to be enforceable. The losing attorney utters a profanity and storms out of the office. Well, I guess that’s real. No contempt powers for arbitrators.

"During the post-mortem back at the law firm, senior partner Black offers valid insights into trial advocacy. He excoriates the rude attorney at the arbitration and then fires the defendant’s lawyers in the 'terrorist threat' lawsuit. Camera follows the out-of-work lawyers to the elevator which for them goes only one way.

"Why couldn't The Law Firm be uplifting like the one reality show I adore, 'Dancing with the Stars.' A television personality teams up with a professional dancer and competes with another similar team in a variety of dances that are judged by a trio of choreographers. Their votes are only advisory. Viewers call in and vote for the winner. The winner’s prize goes to charity. Yes, there are winners and losers, but only in a tongue in cheek way. The contestants do not slander or excoriate each other. They are working to develop a skill that requires hours of commitment, practice, facility, and grace. The pithy comments from the judges give the viewer some insight into the complexity and artistry of the enterprise. With the exception of Dancing with the Stars, I say, down with reality shows. They lack authenticity. Yours truly, Miss Anne Thrope"

I don't agree with all of Miss Anne's comments, but I did watch Dancing with the Stars, and was cha cha cha-ing all through the house. Despite my aversion to reality shows, I must acknowledge they are a part of our culture, and . . . O.K. I have this idea for a reality show. I call it "The Appointment."

A group of seasoned lawyers (that leaves out those rejected from "The Law Firm) wish to be appointed to a single opening on the trial bench. They are put through a series of grueling tests. First they have to fill out an application. This is problematic for a busy practitioner who will have to block out a chunk of time to complete this task, say maybe three or four months. Imagine being such a lawyer. It can be disheartening to dredge up cases from decades past and list opposing counsel, particularly the ones you defeated who threatened revenge no matter what. Groups of evaluators many of whom are anonymous, pour over your life as though you were an ex-union organizer applying for work at Wall Mart.

You drum up support from people who may have to appear before you in the event you are selected. One is your opponent in a hotly contested business case. He wants a continuance, but your client is unalterably opposed to it. Hundreds of questionnaires are sent to people who like you, people who hate you, people who don’t know you, and people who are your competitors also seeking to become the judge you want to be. And you receive questionnaires about your competitors. Do you cut a deal with them? A good or average review in exchange for a similar review from them? If you make such a deal how do you know they will live up to the bargain? Whatever you say about them, do you believe it? Is this ethical behavior for anyone let alone a judge? Should you even consider such disgraceful conduct? Who will know? But that is not the point or is it? .

This show has all the ingredients of a top selling reality show. The participants are made to open up and reveal their lives with all their insecurities, ambitions, fears, weaknesses and strengths. Only one will get the appointment. Who will it be? I thought this show would be a winner, but someone told me there is already one like it-- Survivor.

Judges Must Stay In Tune

Peter Stumpf the principal cellist of the Los Angeles Philharmonic plays a 17th century Stradavarius cello. Although “valued” at around 3 million dollars, some would consider the cello, made by Antonio Stradivari in Cremona, Italy, in 1684, priceless. Stumpf doesn’t own the cello. The Philharmonic owns it. But when you are as good as Stumpf the L.A. Phil lets you use it. In legal talk Sutmpf is a grateful bailee. The L.A. Phil is the generous bailor. An incident last year no doubt made the L.A. Phil an agitated bailor. Apparently, musicians, like professors and judges, can be absent minded, an attribute to be expected with so many weighty things on their minds. But brain surgeons for example also have weighty things on their minds, and we do not expect them to be absent minded with their scalpels. After all, they make on the spot life and death choices. But I suppose even brain surgeons might forget where they put the shopping list, or the car keys.
Getting back to Stumpf, you might recall reading about his inadvertent peccadillo last year. At the time it was no peccadillo, but in light of the subject matter, “peccadillo” sounds so musical and Italian. Stumpf came home late in the evening to his house in Silver Lake after performing in Santa Barbara. He carried the multi-million dollar “Strad” in its case. He put the case down on the front porch of his house, fiddled (pardon the expression) with his keys, opened the front door and went inside . . . without the cello. He left it on the front porch. I guess he was tired. Early the next morning, a thief came by on a bicycle and left with the cello case inside of which was the priceless Stradivarius. A neighbor’s security video camera across the street captured the event and showed the thief wobbling on his bicycle as he precariously peddled away while grasping the ungainly cello case. Oh dear! For the inquisitive, an obvious and compelling question comes to mind. On what instrument would Stumpf play at the next concert, if in fact the directors of the Philharmonic did not throttle him first?
Not to worry. The cello was found in an ashcan with minor damage. The cello had not suffered much damage either. I don’t know about the ashcan, but the cello was repaired. So what is the point of all this? It leads to a seemingly simple question, pregnant with profound implications: who is Stumpf without the Strad? Yes, yes, I know he is still a world class cellist, . . . but . . . . “But what . . . ?," the impatient will inquire. Allow me to elaborate. Stumpf is Stumpf just as we all are who we are, except Stumpf the cellist is not Stumpf the cellist without a cello. Well, OK I grant you that if I were introducing Stumpf to someone, and that assumes I know him and I don’t, but if I did, and I wanted to impress the person to whom I was making the introduction, I could very well say, “And this is Peter Stumpf, the principal cellist with the Los Angeles Philharmonic.” And if I were malicious and not particularly fond of Stumpf, I might add: “This is the clown who left a 3 million dollar Stradavrius cello outside on the front porch of his house.”
In fact, I would not utter these words simply because I am capable of doing the very thing that Stumpf did. Of course this is strictly conjecture because no person, institution, or organization would ever entrust a Stradivarius cello to me under any circumstances, including the presence of a 24-hour armed guard. I feel unworthy playing “I’m in the Mood for Love” on my Steinway. I am not sure if that’s because of the title of the song or the instrument. Suffice it to say, my wife does not trust me with a shopping list.
But getting back to my point. We can indeed say that Stumpf is a cellist, and safely introduce him as such, but to realize the unique attribute that makes Stumpf the cellist he is, it is absolutely indispensable that Stumpf have a cello. A cellist without a cello is like a pilot without a plane.
So what about us in the legal profession? Has it occurred to you that we do not have cellos or any reasonably close counterpart? Take judges for example. Contrary to what is depicted in courtroom scenes in old movies and television shows, we do not even have gavels. We may have a ceremonial gavel or two that friends or associations give us on which is inscribed the same inane rhyme that assumes the judge is peripatetic. Does not anyone realize that “travel” is not the only word that rhymes with gavel? If there must be rhyme written on a gavel, I prefer “Don’t cavil with the gavel.” I don’t know of one real life judge who uses a gavel. It is true we do wear robes, but they are a symbol of the office. If we left our robes at home, and ignored Government Code section 68110---which requires us to wear them, we could still sentence some poor devil to 20 years.
And what about you lawyers? Sure you have your briefcases, and silk suits, (well some of you) but you could wear polyester and still practice (maybe not in Century City), but you get my drift. We do not have cellos. Think about it. The brain surgeon must use implements, scalpels and precision knives come to mind, and I am sure there are many more indispensable tools that are required for surgery. Not with us.
We have one thing and one thing only: words. That’s it. Judges for example, utter words and people lose their freedom, their money, or have to do things or stop doing things.
Words are so important to our work that we have to be careful how we use them. They are too important to be left out in the cold. They have to be taken inside and watched over. For example, a person’s freedom or life can depend upon how judges or jurors view the instruction on reasonable doubt. To arrive at guilt in the old days we had to have an abiding conviction to a moral certainty. No one quite knew what “to a moral certainty” meant though today many people are quite sure of their beliefs to a moral certainty.
In the hope of achieving clarity, “moral certainty” was jettisoned from the reasonable doubt instruction in California . (See CALJIC 2.90) Yet, uncertainty remains. In People v. Johnson 119 Cal.App.4th 976, (2004) the trial court tried to explain reasonable doubt to jurors by referring to decisions we make in our everyday lives. The trial judge explained that when you drive through an intersection on the green light, you might be cautious because it is an intersection, but it would not be reasonable to get out of your car and check to see if the red lights controlling cross traffic were malfunctioning. Damned right, and you would be late for court. The criminal conviction was reversed. The Johnson case cited the early case of People v. Brannon, 47 Cal. 96 (1873) which teaches that it is error to equate ordinary everyday decisions with reasonable doubt.
Another Johnson case, People v. Johnson 115 Cal. App.4th 1169 (2004). (Note-2004 was a good year for mishaps.) The trial judge told the jury he would not attempt to paraphrase the reasonable doubt instruction, but then indirectly did so by contrasting it with a ridiculous doubt. For example, we all have a doubt whether we will be here tomorrow. He analogized reasonable doubt to doubts a couple might have about whether a new home is a wise investment. The appellate court pointed out that this is a far different calculus than deciding whether the prosecution has proved the case beyond a reasonable doubt.
And that takes us to Supreme Court nominee John C. Roberts. His words have earned him an extraordinary number of “wins” in the United States Supreme Court. We will see how effective are his words during the confirmation hearing. No doubt there will be questions about judicial philosophy, Roe v. Wade, Robert’s dissent as a federal appeals court judge in a case involving the Endangered Species Act, and questions about whether the Constitution is an endangered species. But one thing I know beyond a reasonable doubt: Judge Roberts will carefully use his words as though they were a Stradivarius. His ability to use them effectively to advance a reasonable argument should remind us how precious are our instruments. Like the Stradivarius, they must be cared for and treated with respect. They can so easily be stolen and misused when they are carelessly left on the porch after we have locked the front door for the night.
It is hoped (not hopefully) that the Senators use and tune their Stradivarii (or whatever the plural is) at Judge Robert’s confirmation hearing. If they use second rate instruments the hearings could well degenerate into chaotic dissonance. Will the Senators be well served by using the reasonable doubt instruction to guide their decision? If they do, let us hope they do not rely on the scuttled phrase that requires a decision based on moral certainty. “Moral certainty” is what is left when the Stradivarius goes missing.