Fear and Trembling with apologies to Kierkegaard June 2023 Column

The unease continues. In my last column, “Frankenstein’s Monster*” (Daily Journal, May 1, 2023), I responded to Judge Michael Kelley’s excellent article, “Why we write” (Daily Journal, April 24, 2023). He marginally eased my concerns about artificial intelligence (AI) writing judicial opinions. This prompted an asterisk after the title. Yes, AI merely spits out words culled from innumerable sources in the past in milliseconds. And, yes, I agree that does not produce the eloquence and perfect turn of phrase of a Justice Cardozo. So? I am hard-pressed to find anyone who does. But even Cardozo doesn’t always get it right, at least in my opinion. Numerous scholars agree. Take for example the famous case Palsgraf v. Long Island Railroad Co., 248 N.Y. 339 (1928). However eloquent the presentation of facts, the result is open to serious question. And if Justice Cardozo can get it wrong, even once, imagine the damage AI can do. What follows is a quick review of the decision, and its positive and negative characteristics. The Palsgraf decision is a landmark case in American tort law. It was decided by the New York Court of Appeals in 1928. The case involved a woman named Helen Palsgraf who was waiting for a train at a Long Island Railroad station. While she was standing on the platform, two men attempted to board a moving train. One of the men was carrying a package that contained fireworks. The package fell onto the tracks and exploded, causing scales at the other end of the platform to fall on Palsgraf and injure her. The court held that the railroad company was not liable for Palsgraf's injuries because there was no way they could have foreseen that the package contained fireworks and that it would cause scales to fall on her. Cardozo's Palsgraf decision established the principle of foreseeability as a criterion for determining whether a defendant owes a duty of care to a plaintiff. The decision has been praised for its clarity and elegance, but also criticized for its narrow and formalistic approach to the concept of negligence. Some possible criticisms of Cardozo's decision are: It ignores the causal connection between the defendant's conduct and the plaintiff's injury, and focuses only on the foreseeability of the harm at the time of the act. It creates an arbitrary distinction between direct and indirect harms, and fails to account for the complexity and unpredictability of human affairs. It imposes an unrealistic burden on plaintiffs to prove that their injuries were within the scope of the risk created by the defendant's negligence. It disregards the moral and social values that underlie tort law, and reduces it to a mechanical application of rules. It contradicts the principle of corrective justice, which requires that those who wrongfully cause harm to others should compensate them for their losses. There you have it. Oh, by the way, I did not write the preceding two paragraphs. Bing’s recent AI program wrote them. I left out the quotes to fool you. Did I? Not my style, but I agree with the premise, the writing of which could pass for much of what is current faire. Nothing wrong with it, though different writers might further develop the causal connection of injury to Mrs. Palsgraf with the acts of the guards to help the late passengers board the moving train. I resisted AI’s desire to take over the balance of this column. If you believe it, what follows is my own modest effort. Let’s look at Judge Andrews’ dissent. His statement of the facts, though not as colorful as Cardozo’s, is concise and to the point. The same may be said of his statement of the issue. Please trust me on this, the quotes that follow are from Andrews’ dissent: “Assisting a passenger to board a train, the defendant's servant negligently knocked a package from his arms. It fell between the platform and the cars. Of its contents the servant knew and could know nothing. A violent explosion followed. The concussion broke some scales standing a considerable distance away. In falling they injured the plaintiff, an intending passenger. “Upon these facts may she recover the damages she has suffered in an action brought against the master? The result we shall reach depends upon our theory as to the nature of negligence. Is it a relative concept – the breach of some duty owing to a particular person or to particular persons? Or where there is an act which unreasonably threatens the safety of others, is the doer liable for all its proximate consequences, even where they result in injury to one who would generally be thought to be outside the radius of danger? This is not a mere dispute as to words. We might not believe that to the average mind the dropping of the bundle would seem to involve the probability of harm to the plaintiff standing many feet away whatever might be the case as to the owner or to one so near as to be likely to be struck by its fall. If, however, we adopt the second hypothesis we have to inquire only as to the relation between cause and effect. We deal in terms of proximate cause, not of negligence.” I urge you to read the entire opinion as I did years after graduation from law school. Compare Andrews’ discussion of the legal issues based on proximate cause with the so-called Cardozo’s “foreseeability” discussion. And for eloquent writing, read Andrews’ comparison of a river to illustrate the limits of proximate cause. I acknowledge that the proximate cause theory has its limitations. Andrews’ dissent acknowledges it stops somewhere. But certainly the railroad has a duty to Mrs. Palsgraf, a paying customer who was injured due to the negligence of the railroad. This view puts me in good company with a host of commentators and scholars, many of whom puzzle over the rationale of the majority and the dissent. No need to mention them all here. I do however wish to mention my torts professor, Dean Prosser, praised the concise, elegant writing style of both Cardozo and Andrews. But he wondered, as I do, how Cardozo could ignore that Mrs. Palsgraf was a passenger, and a paying customer. And by the way, the word “foreseeability” does not appear in the Palsgraf opinion. The words “unforeseen” and “unforeseeable” appear in the dissent. So what is the point of all this? The asterisk is relevant in my previous column, “Frankenstein’s Monster*.” The examples of AI illustrated there and here may be simplistic, not deeply analytical, but they can point one in the right direction. I have heard that some courts are using AI as a kind of research attorney or editor. The alleged purpose is not to write a statement of decision, an opinion or memo, but to set the writer along the right path. I can see how that could be a legitimate purpose. Nevertheless, I am wary. No need to cite the numerous articles in leading journals warning of the dangers of unchecked AI. Even if the results AI achieves are helpful, its use may foster the atrophy of the human creative brain. If this happens, our ability to think creatively will separate us from Cardozo by light years. And in other contexts, AI can spread misinformation that leads to chaos. I have read that AI is being used as psychological therapists and even as virtual boyfriends. One article quoted some women as reporting that fake men are better than the real thing. Hope that wasn’t a quote from my wife. AI can be of immense benefit and immense harm. And it is not fully understood by its creators who can only conjecture about its potential. AI was developed by humans. It can accomplish some tasks in milliseconds that humans would take days, weeks, or years to accomplish. A segment on 60 minutes involved conjectures about when or if AI becomes conscious of itself. Yikes! I try to show a positive outlook while whistling in the dark. Hence the title of this column “Fear and Trembling” and no asterisk. Frankenstein’s monster threatens to kill himself, but in Mary Shelley’s novel Frankenstein; or, The Modern Prometheus, we do not know for sure that he does.

Frankenstein’s Monster* May 2023 column

My March column, “The Horror, the Horror,” prompted a masterly written response by Judge Michael Kelley. See Daily Journal column “Why we write” (Apr. 24). The title of my March column speaks to my concern about what may be an eventual, if not present, reality: ChatGPT writing judicial opinions. I borrowed the words spoken by the character Kurtz at the end of Joseph Conrad’s novel Heart of Darkness to illustrate the horror of such a prospect. In a different time and context, Kurtz’s words reflect his recognition that humans, himself included, commit acts that are evil. I see a possible parallel. Judge Kelley’s informative and engrossing column rejects this cataclysmic view and seeks to put me and others at ease. For now, I agree with his conclusion that “A.I. programs will never come close to producing an opinion as elegant and enduring as [Justice Cardozo’s] Hynes [v. New York Cent. R. Co. (1921) 231 N.Y.229]; and why they should never be asked to try.” I leave to you, dear reader, to read this and other Cardozo opinions, most of which shine with clarity and elevate prose to the height of elegance. But Judge Kelley’s superb column does not entirely convince me to rest easy. In fact, it prompts the title here, “Frankenstein’s Monster*.” Does anyone write judicial opinions with the clarity of expression and choice of just the right words that come close to matching Justice Cardozo, Justice Holmes, and I will add our own Chief Justice Traynor? Yes, A.I. programs do not replicate Shakespeare in subtly, wit and irony. Nor do they come close to matching Cardozo or Holmes in a judicial opinion. Judge Kelley put an A.I. program to the test and asked it to provide a description of proximate cause in the style of Cardozo. Here is what it delivered: “To approach the legal doctrine of proximate cause is to grapple with the quintessential principle in the law of torts. Its essence lies in determining whether a defendant’s actions are causally linked to a plaintiff’s harm. Proximate cause signifies the legal notion that a defendant can be held accountable solely for the harm that was directly caused by their actions and that was reasonably foreseeable.” Hmm, reminds me of many judicial opinions I read today. A.I. can write judicial opinions. They do not come close to matching those of Cardozo. I’m hard-pressed to find any that do. There is a suggestion afoot that many judicial opinions today are verbose, vague, and at times incomprehensible. Who am I to disagree with myself? My reference is to opinions throughout the United States. To avoid my moniker “troublemaker,” in this column, I did not limit my critique to California. I acknowledge that poorly drafted recent legislation has contributed to some confusing California judicial opinions. I include my own efforts in the mix. To avoid melancholy, I avoid reading those I wrote in the past. But the prospect that A.I. could be used to write judicial opinions, however lacking in graceful expression, engenders in me a more pervasive melancholy. But as an aside, I offer this caveat: even the masters can miss the boat. Cardozo's opinions shine with clarity and poetic prose, but the legal discussion in his famous Palsgraf v. Long Island R. Co (1928) 248 N.Y. 339 is another story. Here I change from the metaphor boats to a real train. Who can forget the description of the two men running to board the moving train, the package of fireworks falling, the explosion causing the scales to fall on poor Ms. Palsgraf? The legal reasoning to deny relief to Mrs. Palsgraf could have been written by an A.I. program. (Bracing for the pushback.) Before any of you throw the first stone at me, please read Justice Andrews’ dissent. I will save this discussion for another column. Getting back to Judge Kelley’s column, please note there is an asterisk after the title of this column. Judge Kelley summarizes the thoughts of some professors and jurists about judicial opinions as literature. His takeaway? “A rationality that is capable of ‘literary imagining and sympathy’ does not spring from an algorithm. It must come from the intellect and lived experience of a human judge.” This frame of mind leads to our triumph over A.I. But it requires an unwavering commitment and a conscious effort. In other words, more than a draft or two. We may not match Cardozo in felicity of style, but we can be clear and concise. Our job is to communicate a reason for our decisions. We must write to enable readers to understand what they can and cannot do. We must do so with clarity and concision. We must write in a manner that holds the reader’s attention. Forty pages of rambling defeats this goal and allows A.I. to intrude where it does not belong. The manner of expression, the unique arrangement of words that communicate the reason for a decision, is what we humans do better than a technology that in milliseconds searches and spits out words that humans used in the past. Familiarity with literature and the humanities as a human, as opposed to an unthinking machine searching for words, is our triumph over A.I. It may not come to an end like Frankenstein’s Monster, but we can and must keep it under control.

March is the Cruelest (Cruellest) Month April 2023 column

This year T. S. Eliot’s opening line in The Waste Land is a month late. Justice Norman Epstein passed away on March 24. But April is both a cruel and a positive month for me. It is cruel because of our loss, but positive because it is my opportunity to remember and celebrate with you the remarkable life of my colleague and friend, Justice Norman Epstein. Dateline–the day after Labor Day, September 1975, that was only…(gulp) nearly 48 years ago, the day I first met then Municipal Court Judge Norman Epstein, hereinafter Norm, where I was assigned to the Los Angeles Municipal Traffic Court, alleged to be the largest traffic court in the world. Pardon the informality, but even with his impressive credentials and awards, he was Norm to his friends. For the most part, I will employ the same informal reference to other judges mentioned in this tribute to Justice Epstein... I mean, Norm. Inside tidbit for loyal readers–many judges do form close friendships. I won’t hazard a guess about who, if any, are buddies on the United States Supreme Court. I bet … never mind. Short historical digression for younger readers puzzling over what is a municipal court. Norm would approve this aside but would write a comprehensive scholarly exegesis. Once there were municipal courts throughout the State of California and the County of Los Angeles. Back in 1975, if memory serves me correctly (lately it’s been falling down on the job), the Los Angeles Municipal Court had jurisdiction over misdemeanor criminal matters and civil cases with a jurisdictional limit of $5,000. Over the years the limit increased to $25,000. In 1998 voters passed a constitutional amendment that gave voters in every county the option to unify the municipal and superior courts into a single unified superior court. Within the next few years, all 58 counties in the state voted for unification. This automatically “elevated” all municipal court judges to the superior court. The judges in the photo were already superior court judges when the measure passed. I leave it up to the reader to guess how most of the then municipal and superior court judges voted on the issue. So getting back to the day after Labor Day, 1975, the first day that then Judge Elwood Lui, now Administrative Presiding Justice Lui (I mean, Elwood), and I met, and the first time we both met Norm. Norm was then Governor Ronald Reagan’s last appointment to the California bench. It occurred on Reagan’s last day in office. Norm, having the entirety of constitutional law at his fingertips, wished to avoid a Marbury v. Madison situation and flew to Sacramento to make sure Governor Reagan signed the appointment before midnight. I don’t think he had anything to worry about. I bet Governor Jerry Brown would have appointed Norm if the order had not been signed before midnight. Norm was, to the best of my knowledge, always a Democrat. Governor Reagan appointed him to the municipal court; Governor Brown appointed him to the Los Angeles Superior Court; Governor George Deukmejian appointed him to the Court of Appeal; and Governor Arnold Schwarzenegger appointed him to the position of Presiding Justice of Division 4 of the Court of Appeal. Norm was a judge for all seasons and all parties. After all, the Chief Justice of our nation’s highest court reminded us that “We don’t work as Democrats or Republicans.” A discussion of whether this dictum (or is it a wish?) is valid in our high court I leave for another column. But it is universally accepted that Norm is an example of Chief Justice Robert’s apothegm. Wondering about the last word of the previous sentence? It's Norm looking over my shoulder as I write and speaking to me. “Go ahead, Art, do it.” So where were we? Oh, yes, for the second time, the day after Labor Day, 1975. Francis Rothschild had been sworn in approximately two weeks earlier. Norm was by then a veteran having served on the traffic court for approximately seven months. On that first day Norm and now Presiding Justice Rothschild, hereinafter Fran, took us to lunch at the furniture mart, a wholesale showroom of furniture with a restaurant upstairs open to the public. During lunch Norm and Fran discussed the joy they took in comparing notes over Cal.3d and Cal App.3d while Elwood and I picked at our salad niçoise. At that time Elwood and I were trying to figure out if the left turn was safe. After that lunch we almost turned in our resignations. Norm became an avid bicyclist. I could have used “biker,” but somehow that term just doesn’t seem to fit Justice Epstein, I mean Norm. He and his sidekick Superior Court Judge David Jaffe would spend vacations cycling the back roads of America. Even while on these special trips away from the court, Norm’s logical brain was alert. One time while peddling along a rural road in what I think could have been a southern state, the “bikers” noticed they were being chased by a ferocious pit bull. One quick look over his shoulder, and Norm made no attempt to pedal faster. His biking companion yelled, "How can you be so calm? The dog is gaining on us!" Norm replied with insouciance, "The dog has a chicken in his mouth. That's a prize he will not give up." At judge’s meetings, in fact, at any gathering, when Norm spoke, everyone listened. I remember the first municipal court judge’s meeting I attended. Norm spoke and silence fell upon the room. He used the word “insouciance.” Thereafter I brought a dictionary and thesaurus to future meetings. Norm’s updates on criminal and civil appellate opinions were a must for everyone in the legal profession. His lectures were packed, and it was an ideal forum for me to learn what I meant in opinions I authored. The redoubtable Bernie Witkin told me how pleased he was to have Norm working with him on the Witkin treatises. As the Dean and teacher at the California Judges College, Norm was instrumental in assuring that California maintains its preeminence as the outstanding and most influential judiciary in the nation. So, Norm, it is not truly goodbye. You stay with us, and your influence continues to inspire. The photo was taken at our formal swearing in on October 23, 1975, at the County Courthouse in Los Angeles. From left to right is now Administrative Presiding Justice Elwood Lui, me, Presiding Justice Norman Epstein, Presiding Justice Francis Rothschild, and Superior Court Judge Loren Miller (deceased).

The Horror! The Horror! March Column 2023

Last month I wrote about the possibility that ChatGPT may have written my column. Because it (ChatGPT is an “it”) tries in its endeavor to mimic people, then it is ipso facto unreliable, irresponsible, mendacious and artificial, artificial in all aspects of that last unflattering adjective. Not to worry, I have not, well, not for the most part, let this view of humanity affect my decisions. Citing this column as grounds for a recusal motion in my court is not a ruling I can make in advance. Shakespearean scholar and trenchant observer of life and events Brad Berens writes about A.I. in his Brad Berens Weekly Dispatch, which I highly recommend. It’s available online. Years ago, Brad and I gave a talk on the relevance of Shakespeare’s Measure for Measure on the legal profession to judges on the art of judging. This may be anecdotal, but it has been said that judges who attended the lecture suffered the lowest rate of reversals. Don’t quote me on this. A week ago Berens wrote about Microsoft’s new Bing chatbot. It has a couple of alter egos. And one of them has the sort of androgynous name “Sydney.” Note the “y.” Decades ago I dated a woman named Sydney. She had dark hair, a Mona Lisa smile and… never mind. There are plenty of men named Sidney, with an “i.” Sidney Poitier comes to mind. But there is also Sydney with a “y” Greenstreet. If you don’t know who he is, you are not a movie buff and may be too young to read this column. Whoops! Oh dear! In the preceding sentence, I may have insulted the young. I could apologize, but I am not sure what the cutoff date is for “the young.” People live longer today than in the past. Look at me, for example. But irrespective of who fits into the category of “young,” I am not all that good at apologizing. Ask my wife. It is my belief that my intrepid Daily Journal editors will publish this column. But who knows what will happen with the avalanche of complaints from “the young” thereafter? Before we get back to Berens’s view of Bing’s Shakespeare impersonations, Berens writes that Sydney tried to strike up a romantic relation with Kevin Roose of The New York Times, having a kind of pen pal relationship with it, it being Sydney. I will not call it “her.” She, I mean it, said to Roose, “You’re married, but you don’t love your spouse.” Berens goes on to report that Roose assured the Jezebel Sydney that it was wrong and he and his wife had a “lovely Valentine’s Day dinner.” Sydney contradicted him and said that he and his spouse did not love each other and, get this, that they had a “boring Valentine’s day dinner together.” Yikes! I am certainly not telling my wife Barbara about this episode. We had a wonderful two-hour Valentine’s lunch. (Aside for mature readers–Persons of experience do that to avoid crowds and astronomical prices on prix fixe menus.) Hope I have not offended the AARP crowd. How about some slack. I’m a member. Berens’s analysis of Bing writing Shakespearean sonnets did not set off alarm bells. In seconds, it dashed off a sonnet in iambic pentameter with the rhymed couplet in the last two lines. The sonnet was in the correct form, but, as Berens observed, lacked the “insight” and “majesty” of, for example, Shakespeare’s King Lear railing against a storm. But as Berens refined his prompts to Bing, it got better “startlingly so at knocking out Shakespearean sonnets.” Berens, however, is not worried. Unlike human writing, Berens points out there are no surprises or human creativity in Bing’s efforts. Berens also notes that humans need not worry “because writing anything … is an exercise in figuring out what you want to say rather than saying something that you’ve already figured out.” What a relief. I don’t think so. Berens predicts that the next generation of ChatGPT will bring improved capabilities and that “its current limitations might evaporate.” Greeting card companies watch out. And what about the judiciary? I am not about to “opine” here that some statements of decision and appellate opinions may have been … never mind. But what about the upcoming new generation of competing ChatGPT’s. I bet they will be writing judicial opinions, and we probably… no, more likely, will not know the difference. And then imagine competing ChatGPT dissents. The very thought of this stabs me in the heart and compels this response in the darkness, “The horror, The horror.”

Did I Write This Column or …? February 2023 column

In last month’s column I opined (horrible word that judges use too often) that readers would know that I, not ChatGPT, had written my column. My faulty logic led me to opine that ChatGPT would not use the word “undead” as I had. Of course it would. It writes bad Shakespeare, so why wouldn’t it write bad Gilbert? All it has to do is write in the style of Gilbert, I mean bad Gilbert. A pleonasm? Tautology? Note to reader - you can look up these words. I did. Would I write Gilbert is bad Gilbert? But who here (nice euphonious juxtaposition) is I? If ChatGPT did write my January column pretending to be me, then the word “me” is not me. It’s a, a what? But does it matter? Damned right it does, but it doesn’t to ChatGPT. I hate having to type ChatGPT all the time. I would rather refer to it as “it” because that is what it is. And it, ChatGPT, would write what you have just read, assuming anyone would want to read this far. It has no conscience. Without a doubt, it is smug. It would write insulting words about itself to make you think I am writing this column. There’s the contradiction, or, if you like, paradox, an example of artificial intelligence that, not who, exhibits the apogee of conceit, yet allows a human to take the undeserved credit. One can imagine the turmoil that will occur when ChatGPT decides to take credit for what it writes. Believe me, that is in the works. The ability of humans to write will have so atrophied that ChatGPT and its other A.I. buddies will take over the world and our lives. And don’t be fooled by this paragraph. ChatGPT could have written it to mock my style and throw the reader off. This is truly scary. It doesn’t matter who – again, is ChatGPT a who? I read that ChatGPT is improving and that new models will be able to write more authentic Shakespeare. If it writes authentic good Gilbert that could mean it is successfully writing bad Gilbert. Before we move on, one comment about “opine.” It’s a snooty word, but says in one word what it takes several other words to express. Example: The expert “opined” (rather than concluded in her opinion) that the concrete was not properly reinforced. Maybe a toss up between the two, “snooty” vs. “concise.” I, or if Chat GPT is writing this column, prefer “concise.” What follows is personal. No artificial concoction knows, or at least not yet, my thoughts. This is far different than copying a writing style. It is about a person who I loved and admired who made a difference in my life, and in countless others. Professor Herb Morris passed away in December. Many years ago, I enlisted him to teach a graduate CJER course in philosophy and literature for trial and appellate justices. We read and discussed the works of legal philosophers, H.L.A. Hart, Ronald Dworkin, Lon Fuller, and others. We read and discussed literature that explored themes of justice, the trilogy in the Oresteia by Aeschylus, Melville’s Billy Budd, Kafka’s The Trial and The Penal Colony, and Shakespeare’s Measure for Measure. I have often argued in this column and elsewhere that a familiarity with works of literature, particularly where themes relating to justice are prominent, gives judges a wider range of ideas and tools to decide cases. For several years appellate specialist and Professor (Ret.) Robert Gerstein and I taught a course at the judicial college discussing ways to approach the “hard” case, the one in which there is no ready answer. What are the ways and avenues judges can draw upon to decide these cases? In addition to a discussion of the appellate standards of review, judges were assigned passages from legal philosophers, including Ronald Dworkin and H.L.A. Hart. They were also assigned Shakespeare’s Measure for Measure, a problematic play that examines notions of justice that are as relevant today as they were in Shakespeare’s time. This approach to judicial education is no longer an integral part of judicial education in California today. Of course, judges must learn the technical aspects of their job. They must negotiate through the labyrinth of new criminal sentencing laws. That chore is near impossible, with appellate opinions in disagreement with one another, and appellate justices on the same panel in disagreement with each other, the result of which is to leave trial judges and lawyers scratching their heads. Tracing community property, applying Epstein credits in family law, or deciding whether arbitration clauses are unconscionable are vital to a judge’s education. So is drafting a comprehensible statement of decision. But learning these technical tools without a grounding in the principles that drive our decisions deprives judges of insights and discovery that enrich their lives and bring an added element of joy to their demanding work. But I am confident that Herb Morris’s influence will again be recognized as vital to the education of our judiciary. Many judges yearn to explore in greater depth the underpinnings of their profession. Retired Los Angeles Superior Court Judge Cliff Klein has introduced stimulating programs to judges relating to philosophy, poetry, and constitutional law. I have worked with him to bring these programs to Court of Appeal justices and research attorneys in the Second Appellate District Court of Appeal. When I write or speak about Herb Morris, I use the present tense because his presence is palpable. His influence in many disciplines is pervasive and continues to open avenues for further exploration. Barbara and I had dinner with Herb a month before he passed away. At 94, Herb’s mind was as usual sharp and inquisitive. His lively conversation concerning the publication of his insightful analysis on the French painter Poussin shed light on fresh ways to consider, among other things, religion, free will, and choice. Herb, the down-to-earth unassuming observer of the human condition was a law professor, philosopher, and psychoanalyst, who made a difference to anyone who knew him or read his numerous books and essays on philosophy, ethics, and literary criticism. In addition to teaching law at UCLA, he also served as its dean of humanities. His book, On Guilt and Innocence: Essays in Legal Philosophy and Moral Psychology (University Press 1976), is and will continue to be a work of lasting influence. So, Herb, I will miss our lunches and dinners, but our conversations will continue and so will our special friendship. Barbara is rereading Anna Karenina after Herb recommended we do so at our last dinner. I’m next.

The Undead January 2023 column

The “event” l wrote about in my December column is over. Whew! My colleagues and I now preside in an eponymous courtroom. Over the entrance the observant will see letters that spell my name. I had nothing to do with it. Last time I checked, I have not “passed on.” Don’t like that term. It’s like missing an offramp. That is the best time to name a building or room after a person. l am like a fugitive from a horror movie, one of the undead. Luckily, I don’t enter the courtroom from the entrance, an unnerving experience. I hope attorneys and litigants leaving the courtroom after oral argument don’t mutter “I think we got screwed in the Arthur Gilbert courtroom.” Many people who attended the ceremony for the “event” thought the “naming” marked my retirement, a better circumstance than death. Perhaps it should have been my retirement. Because it was also my birthday in December, several friends gave me Steve Lopez’s new book on retirement “Independence Day” (Harper Horizon 2022). Think this is a hint? I have expressed the imminent eventuality of my departure (judicial departure), but, after five years of saying so, I am losing credibility. A few years ago my colleagues asked me not to retire. I was flattered and agreed to do so on condition that they let me know when I am “losing it.” Of course, when that happens… maybe it already did, I won’t believe it. So maybe the coming year … oh, never mind. So getting back to the Steve Lopez books on retirement. Notice the plural “books.” The observant reader will note that in an earlier paragraph I wrote that “several friends” gave me Lopez’s book. I was a grateful recipient of these thoughtful gifts from friends. So what does “one” do when “they” (preceding neutral gender plural pronoun now acceptable to refer back to singular noun – drives me nuts) are in such a situation? To the first friend who gives you the nicely wrapped book, one (me) might say something like, “Oh! Thanks for the thoughtful gift. Is this a not-so-subtle hint? Ha Ha I am not doing a good job?” (Note–try to hide edge of sarcasm.) And what does one do when friends give you the same gift? Of course you look surprised and say pretty much what you said to the previous friend. So, what do I do with all these books? I don’t want to be rude and read only one of the books. I came up with an ingenious plan. I will read chapters in succession in each of the books. That way I can say with near truthfulness to the gift givers that I read the book they gave me. Just thought of something. What if any one of them reads this column? Darn. I have to chance it. I have limited time and I am not about to scuttle what I have written and start over. Not all the gift books I received had inscriptions written in them. It would probably be… well, would it be untoward to give one of the books as a gift to someone else? I guess so. And it would be even more unacceptable to write an inscription in any of the books I could give as a gift to others. Didn’t say I was going to do this, just musing. So speaking of retirement, this takes me to the recent HBO series on Shaq O’Neal’s post-retirement reminiscence. He is sprawled out in a large leather chair, the one that Jack encountered when he finished his climb up the beanstalk. The chair was requisitioned after the giant’s demise. So, Shaq reviews his past triumphs and defeats. He says it like it is from his perspective, sprinkling his narrative with a generous share of obscenities between replays of past games. My kind of guy. I guess because of his profession, he gets to use profanity with abandon, even before retirement. I recall many years ago seated mid-court in an all-star basketball game. I could hear the players yelling and shouting profanities. Could have been a dialog on cable television. There was a scene in the series where Shaq mentions the great coach Phil Jackson, the “Zen Master,” and devotee of Eastern philosophy, urging him to read Nietzsche’s “Ecce Homo.” Shaq, who acknowledged he wasn’t all that much into reading, said he read the book. I bet he read the cliff notes. “Hey Shaq buddy, just kidding.” Yes, Shaq and I are “buddies,” sort of. Don’t think he will dribble me around the courthouse. After all, Shaq reads my column. Well, at least he read one a few decades ago. Readers on Medicare might recall I wrote a few columns about Shaq’s response to the question, “What does it take for the Sacramento Kings to beat the Lakers? ” Shaq said, “It begins with ‘C’ and ends with ‘T.’” I speculated on what Shaq meant… “cheat,” and whether that was a “cheap shot.” Clever, huh? To make it even more clever, I cited the infamous People v. Arno (1979) 90 Cal.App.3d 505, 514, footnote 2. Shaq would never know. He doesn’t read the Daily Journal, right? Wrong, he read this one and wrote to me scribbling across his copy of the column, “Gilbert, J., what makes you think I don’t read the Daily Journal?” I wonder if there is a story behind Shaq writing me. Let’s see. I believe Shaq was a reserve officer with the Port Police and then attorney Elwood Lui served on the Los Angeles Board of Harbor Commissioners. Maybe… oh well, Shaq wanted to have lunch with Elwood and me, but before we could arrive at a date, he was traded to the Miami Heat. So, getting back to retirement, when that happens, what happens to my column? Does it retire with me? Who cares what an ex judge has to say? Come to think of it, that same question can be asked about a sitting judge. And, even if I continue to write the column, will it reflect the same style? I have been told that some personalities change in retirement. I read in the New York Times there is a new A.I. app called ChatGPT. It writes creatively, with humor and nuance. Hmm, maybe…? No, forget it. It would never write “undead.”

Remembrance of Times in the Future with apologies to Marcel Proust December 2022 column

This column, being something over #320, is the most bizarre of any I have written. And it is the scariest. (Teaser to induce readers to move on to next paragraph.) I am now in the present for me, composing the second paragraph of this column, which of course you are reading now in the present for you, and the past for me. Nothing unusual about that. Not one of you has been around watching me staring at the keyboard. You don’t experience the struggle to grab the squirming words out of the air, or wherever they come from. What is unusual is that I am writing about an event that has not yet occurred. But now as you read this column, it already happened. Consider this column a combination of anticipation and reminiscence about the future. Explanation: This column usually appears on the first Monday of each month. If the universe is still intact on Monday, December 5th, it is likely you and I will be reading this column on that or some future day. That means, my drop-dead deadline (pardon the reference; as you shall see, the reference is relevant) to submit my column to the Daily Journal is the morning of Friday, December 2nd. But the event I am writing about will not have occurred until Friday, December 2nd, at noon. This moves my deadline back to Thursday, December 1st. This is what is supposed to have happened last Friday. (Gulp!) Sorry. Can’t help it. Let’s assume it did. Strike that last sentence. We know now whether it did or not. But right now, as I write this column, I don’t know for sure. Nobody does (reference to humans only). There is a courtroom where I (pardon the formality) preside during oral argument. My dear friend and colleague, recently retired Justice Steve Perren, thought we should name the courtroom in our division after me. That’s odd. He’s the one retiring. Somehow the idea caught on. There’s no way out. Probably has something to do with my age. So here are my concerns about the event. There will be speeches, I hope short and concise like good appellate opinions. And no doubt I will be expected to say something at the conclusion of the, I hope, short ceremony. From past experiences, when they call up the “honoree,” people in attendance feel obligated to stand. One joker, usually a brother-in-law, stands up and everyone follows suit. Now I am not so vain as to think anyone is going to stand up when I am introduced. But… just in case, I have an admission to make (please keep this under your hat). I freak out when people stand up, a problematic condition for a judge. It goes back to a traumatic experience in grammar-school. The teacher called on me and said, “Arthur, will you please stand, and lead the class in the pledge of allegiance.” I stopped playing with the ink well and got up from my desk. As I placed my hand over my heart, the class yelled, “Stand up Arthur.” Short guys must deal with this phenomenon. Watching other people stand up when my court is called into session would truly help overcome this phobia if any of them were from my grammar school. All of us have dreams as kids. For me, being a judge was not one of them. But as far back as grammar school, I wanted to be a writer. I eagerly pursued this dream while sitting down. I wrote a script that a classmate and I read at an assembly before the entire school. The theme – not wasting paper towels in the lavatory. It was a smashing success. In high school I wanted to a columnist. The illustrious attorney Andrea Ordin was no less impressive in high school than she is now. She was an editor of a slick magazine, The Junior Journal. She gave me my first break, and put me on staff as an ace reporter, columnist, and jazz critic. One of my notable interviews was with trumpeter Shorty Rogers, one of the early exponents of what was called West Coast Jazz. I recall asking him a question that only a 16-year-old would conjure. It was something like, “Shorty, our readers would like to know to what extent you employ contrapuntal figures and Stravinsky-type polyrhythms in your improvisation.” After a long contemplative gaze, Shorty said, “Hey man, you got a match?” I also interviewed Robert Kingsley when he was Dean of the USC law school. Who would have believed that some 30 years later we would be colleagues on the Court of Appeal. Seeing my name in print was a thrill, but as teenagers are wont to do, for a short period to time, I thought it would be cool to have something more concrete named after me. Anything would do, even the men’s room at Union Station. When the Junior Journal moved from its building to a new location, I saw my chance. Here’s something else to keep under your hat – As the last of our desks were removed, I noticed a can of paint and a brush outside the entrance to our now empty offices. I climbed up a ladder and wrote “Art Gilbert was here” on the side of the building. And, yes, on occasion, I drove by to see how long it would be before my name was removed. Quite awhile can be a short time when one is in high school. As the decades move forward with quickening speed, I can look back to have written opinions, memos, articles, and letters, that together number in the thousands, and over 300 columns… oh, I already mentioned that. Not sure whether it is true that David Huston, Editor-in-Chief of the Daily Journal, obtained excess liability insurance with me on staff. Getting back to the courtroom naming… what else can I call it? If you are not a billionaire, you usually have to wait until you’re dead to have something named after you. I was relieved to read the book on etiquette for naming courtrooms after people. It is permissible for the person to be alive, so long as the person is not too young. In the Einstein universe of relativity, perhaps somewhere in another dimension the future I am writing about already happened. Oh, by the way, you may be seated.

Bitching and Praising Column November 2022

Let’s start with what regular readers have lately come to expect in my more recent columns, relentless bitching (not “bitchin”). This is a continuation of my rant over the bastardization of language. Hmm looks like I just bastardized it. Cole Porter’s song “Anything Goes,” performed in the musical Anything Goes in 1934, comes to mind. If you don’t know who Cole Porter is, I would prefer not knowing about it. A few of the lyrics makes my point: Good authors too who once knew better words Now only use four-letter words Writing prose…. The world has gone mad today And good's bad today, And black's white today, And day's night today…. You get the idea. And this takes me to something more to rail about–words today that have meanings that are the opposite of what the words mean. Yes, I know that in the 50’s if someone of the opposite sex was attractive, they were “cool” and now they are “hot.” Of course, now if you say anything about the opposite sex’s appearance you may be sued. I am confused about the term “microaggression.” It may be a misnomer. It is not necessarily an aggression. In many cases it is just an unintentional screw-up. Notice in the preceding sentence I wrote “screw up” and didn’t write the “F” word? Why not? Refined, well-dressed people of all sexes use the word with abandon. Witnesses testifying under oath in the January 6th hearings quoted White House officials. So and so “said the F word.” Why didn’t they just say the word? It has become the most widely used word in our language. Have you watched television “dramas” lately? Yet a college professor who commented on this phenomenon was fired for saying the F word during a lecture in which he was explaining the phenomenon. Wonder if it’s OK if I write it? I didn’t check with my editor Diana Bisotti or the Daily Journal’s Editor-in-Chief David Huston. They are both enlightened, “cool” people. Whoops, I just dated myself. But I digress. So, getting back to what is a microaggression. I was puzzled because this word seems paradoxical. “Micro” means extremely small and it seems out of place in juxtaposition with “aggression.” I acknowledge bacteria are extremely small and some do lots of harm. Whether “they” mean to do harm I leave to experts in microbiology. Microaggression is used to describe actions by people. If someone throws a claw hammer at you, that’s an aggression. If they throw an empty pillowcase at you… forget it. Nothing to do with microaggression. I read that 50 years ago a Harvard University psychiatrist named Chester Price coined the term to describe insults inflicted by non-Black people on Black people. But there is nothing “micro” about overt racism. Over the years the definition has undergone revision. Scholars in the field of psychiatry and psychology now describe it generally as a comment directed at someone who belongs to a “socially marginalized group.” Seems to me that calling a group “socially marginalized” is a kind of insult. But according to psychologist Derald Wing Sue, and others, the comments may be well-intentioned. But “well intentioned” implies the opposite of aggression. This does not include the example of a mistake. Imagine two movie actors being filmed in a fist fight on a public street. A do-gooder, unobservant bystander, who didn’t see the camera or the barriers to keep out the public, intervenes to help the loser is not what we are talking about. Is a well-intentioned “microaggressor” someone who gives candy to a diabetic, or someone who holds the door open for 30 seconds for an obviously disabled person? This last example could elicit the following response: “I don’t need any favors buddy. I get around.” I do not question that the recipient of the “microaggression” might be offended, but is the well-meaning klutz who tries to do the right thing really an aggressor? How about giving money to someone who appears to be a homeless person who did not ask for it and is insulted by the offer? I recall some years ago on a cold winter night in Oxford, England, I saw a shabbily dressed elderly man sifting through a garbage can. I offered him a pound or two, not ground round, but money, you know, English money, that isn’t worth all that much these days. He rejected my offer with a harsh “no” which implied where I could go with my pounds. So, I guess I was a “microaggressor” shortly after the term had been coined. My action was intentional but … A good example of an unintentional microaggression is the following: an employer is interviewing a person who appears to be Asian for a management position in the company. The employer remarks that the interviewee’s use of English is excellent. The interviewee was born in Sacramento. So, let’s all think before we speak. Wait! I was told that when I was a kid. But let’s not be so inhibited that we are afraid to open our mouth because of the possibility we might offend someone. So I repeat what my mother taught me, “Think before you speak.” That I did not learn that lesson is beside the point. So, Mom, you are right once again. This is a far better approach than simply saying “who gives a F…” And now for the “praise” part of the column. This praise is macro and intentional because it comes in abundance for our Chief Justice Tani Cantil-Sakauye, who led the California Judiciary for the past 12 years. Her remarkable leadership made a difference that will last for generations. She crafts readable opinions that reflect scholarship and commonsense. No doubt her time on the trial and appellate courts contributed to this much necessary and admired skill. In addition to leading our Supreme Court, she administered a budget of over $5 billion dollars, and she has been involved in committees to bring access to justice for all our citizens. Her “Power of Democracy” campaign involves educating youth in the tenets of democracy. Her support to end domestic violence and to increase diversity in our government is legendary. And she brings her characteristic warmth and humanity wherever she goes. What else can I say? We all admire and love you, Tani. We wish you the best in what will soon be your new position as president and chief executive of the Public Policy Institute of California, a nonprofit think tank, whose mission is to “inform and improve public policy in California through independent, objective and nonpartisan research.” And we can rest easy in knowing our new Chief Justice Patricia Guerrero will also bring extraordinary attributes to our Supreme Court.

Mistakes v. Errors September 2022 Column

Judges are constantly faced with verses… I mean “versus.” The former refers to metrical feet, like in poetry, Shakespeare sonnets kind of thing. But “versus” refers to a party or parties against one another. Like in sports…no, not like in sports. A trial is not a sporting event. Don’t get me started. Where were we? Oh, yes, verses v. versus. I just proved I know the difference. But what if I wrote “Judges are constantly faced with parties verses parties.” You can damned well be certain readers would point it out. Momentary aside: immediately upon typing “damned,” auto correct interrupted with “the language may be offensive to your readers.” Get ready for a column on that one. Certain persnickety readers, some posing as friends, love to point out spelling and punctuation mistakes (or is it errors?) I have committed in my columns. Grammarians who think they know what they are talking about make a distinction. A mistake is an accident, whoops! One knows it’s wrong after it is pointed out. But an error is something one wrote or did and “they” don’t know it was wrong. Another aside: If I haven’t lost you, later in this column we will explore my mistake(?) error(?) using “they” to refer to a singular antecedent. In my last column I referred to “Daniel Webster’s Dictionary.” Idiot! Attorney Robert Gerstein tactfully pointed out that of course I meant… Noah Webster who is responsible for the dictionary. But I knew that so many years ago. And in a previous column I referred to people “averting” my gaze. Attorney Andy Lundberg questions whether other people can avert my gaze. They can’t. They can, however, avert their gaze. One loyal reader was dismayed that I had written “It’s me.” Fowler in his Modern English Usage (2nd ed., Oxford Univ. Press, 1983, p. 258) gives me a pass. “It’s me” is sanctioned. Note for lawyers and judges – here “sanctioned” means “approved,” not “disciplined.” The title of the standard tune “It Could Happen to You” (most young readers have no idea what I am talking about) strikes a sympathetic chord within me (get it) when other writers screw up. A highly talented friend, colleague, and columnist alerted me to a mixed metaphor he read in a column. “Looks like the train is coming to the station and we are going to have to fish or cut bait.” Please withhold judgment for a moment. Thinking back… say back when I was arguing cases before obdurate judges, I have an argument in support of the hapless metaphor. “It’s all about context, Your Honor. The train station is situated on the bank of a lake. Passengers have been known to cut bait as the train pulls into the station and cast their lines out the train windows into the lake. Passengers in the seats opposite the fishing passengers are advised to use caution and duck. All passengers are advised to avoid slipping on the newly caught fish flopping on the floor. On second thought, whether the metaphor is mixed is beside the point. Fishing from the window of the train on the bank of the lake is inapt in today’s climate. Here I use “climate” in the literal sense of the word. Because of catastrophic conditions occasioned by the drought, the lake has dried up. It is now a mud hole devoid of fish. What heretofore was an appropriate reference has now morphed into an inappropriate metaphor. I confess to an error in my earlier concerns about the use of “they” to refer to a previous singular pronoun. Due to the failure of our language to have an appropriate gender-neutral singular pronoun, we often used “he” as the operative pronoun to refer back to the antecedent noun. That, I always acknowledged, was unacceptable and shameful. My error was thinking that using “they” was grammatically improper if not unacceptable. I began using “she” or “he” to refer back to the singular antecedent. Example: “When a judge yells at counsel, ‘she or he’ casts a bad light on all judges.” But then it occurred to me that I was discriminating against men, and also subject to the criticism of pandering to women. So I alternated between “she” and “he.” Mind you, it was hard to keep track. I could write a sentence with “she or he,” but if the same dilemma occurred in another paragraph, wouldn’t it be fair to use “he or she”? You can imagine how confusing this would be to the reader. And on other occasions, it could be days later before I wrote one with the alternating “he” or “she.” Because an accurate count was not feasible, I just wrote “he or she” for awhile, and then changed to “she or he.” Back and forth it went until I realized that no matter how hard I tried to be fair, I was offending everyone. Obviously the “he’s” and “she’s” who were reading my opinions, letters, emails, articles, and columns were not aware of my system. Like one of life’s many inequities, my method was fair, but no one knew it. And, of course, I was in error. What I thought was the grammatically heretofore unacceptable “they” has been acceptable for years. The New Oxford Dictionary of English (1998) and the New Oxford American Dictionary (3rd ed., 2010) back me up. And Shakespeare had no problems with a plural pronoun agreeing with its singular antecedent. In Comedy of Errors, Act IV, Scene 3, “There’s not a man I meet but doth salute me As if I were their well-acquainted friend.” Please do not argue that it would have been better for Shakespeare to have written “not a person.” Shakespeare’s plays for the most part praised women for their sensitivity, compassion, character, and wisdom. Come to think of it, most of his male characters were jerks. Shakespearian scholars need not write. Grammar changes and evolves with the times. A person’s gender is often “their” business. If one’s gender is not relevant to the subject, let our words that reflect our thoughts accommodate respect and common sense.

Great Workout Arthur August Column 2022

Today there are no failures. No matter the screw-up, everyone does a great job. Compliments! What good are they if every numbskull gets one? We have become liars and hypocrites for fear of offending someone. Take my treadmill for example. I did 20 minutes of fast alternating uphill running, then level slow jogging, then back to uphill running. The treadmill’s screen message got it right, “GREAT WORKOUT ARTHUR.” Damned right I had a “great” workout. But on another occasion, when I shut off the treadmill after three minutes to “take” (receive) a call on my cell (cell phone), the treadmill gave me the same thumbs up, “Great Workout Arthur.” No caps this time. “Liar, hypocrite!” I yelled at the treadmill… and then had to explain to my insurance broker on the phone that I didn’t mean her. On another occasion I confessed to my gym buddies in the locker room: “Hey guys, I pooped out on the stationary bike today and fell off the seat when getting off.” Their response: “At a way to go bro…give me five.” We live in a world where everyone gets praise. We are all terrific. With everyone now doing a bang-up job and basking in the high echelons of accomplishment, we can pat one another on the back for… breathing. What if a friend or a colleague asked what I thought of an article “they” (new usage to avoid “he or she”- sorry Noah Webster) had written, and I suggested a few changes? God forbid “they" might be offended. What if I said, “Terrific article, but this compound sentence needs a semi-colon”? Sorry, that is a micro aggression. And this takes me to the Legislature and Penal Code section 1203.2a. Let’s cite verbatim a couple of paragraphs: “If any defendant who has been released on probation is committed to a prison in this state or another state for another offense, the court which released him or her on probation shall have jurisdiction to impose sentence, if no sentence has previously been imposed for the offense for which he or she was granted probation, in the absence of the defendant, on the request of the defendant made through his or her counsel, or by himself or herself in writing, if such writing is signed in the presence of the warden of the prison in which he or she is confined or the duly authorized representative of the warden, and the warden or his or her representative attests both that the defendant has made and signed such request and that he or she states that he or she wishes the court to impose sentence in the case in which he or she was released on probation, in his or her absence and without him or her being represented by counsel.” “Upon being informed by the probation officer of the defendant’s confinement, or upon receipt from the warden or duly authorized representative of any prison in this state or another state of a certificate showing that the defendant is confined in prison, the court shall issue its commitment if sentence has previously been imposed. If sentence has not been previously imposed and if the defendant has requested the court through counsel or in writing in the manner herein provided to impose sentence in the case in which he or she was released on probation in his or her absence and without the presence of counsel to represent him or her, the court shall impose sentence and issue its commitment, or shall make other final order terminating its jurisdiction over the defendant in the case in which the order of probation was made. If the case is one in which sentence has previously been imposed, the court shall be deprived of jurisdiction over defendant if it does not issue its commitment or make other final order terminating its jurisdiction over defendant in the case within 60 days after being notified of the confinement. If the case is one in which sentence has not previously been imposed, the court is deprived of jurisdiction over defendant if it does not impose sentence and issue its commitment or make other final order terminating its jurisdiction over defendant in the case within 30 days after defendant has, in the manner prescribed by this section, requested imposition of sentence.” The first paragraph contains 171 words. The second paragraph contains 252 words. Any reader who checks whether my trusted judicial assistant Bonnie Edwards and I counted correctly is invited to stop reading this or any future column. And if our number count is off, no need to call it to everyone’s attention, the whole point of this column. So, what am I supposed to say – “Terrific job Legislature”? No matter that the statute is seemingly incomprehensible and anyone who writes a sentence longer than 25 words should be hanged and quartered. But guess what? The statute does have meaning for anyone given the laborious task of figuring it out, like say, for instance, a judge. Yes, I figured it out… I guess I did thirty-one years ago when I was politically incorrect. In People v. Holt (1991) 226 Cal.App.3d 962, 965, I wrote, “It is an unenviable chore to consider Penal Code section 1203.2a. The statute reflects a disregard for careful drafting and contempt for the English language. Meandering clauses in which the subject and predicate are ruthlessly separated from one another, jumps in thought and logic, and a lack of organization make the going difficult. Nevertheless, we have persevered in our trek through the statute's thicket of tangled clauses. Our efforts have not gone unrewarded. The statute has a specific meaning that apparently was not discernible to other courts.” Please forgive. I was callous and did not give a hoot what the Legislature felt so many years ago. Yes, legislatures have feelings. After all, they are composed of people. But I can’t help feeling sorry for the probation officer who had to interpret the statute. Because he failed to notify the court that held the probation violation hearing of defendant's imprisonment within 30 days after he himself received notification, the trial court did not have jurisdiction to sentence defendant. Lucky break for the defendant. We reversed. Don’t know what I’m talking about? Read the statute. It won’t help. But perhaps I am overreacting to current notions of sensitivity to others. I have not experienced a trace of this trend in petitions for rehearing. Wonder what my good friend and colleague Arleigh Woods would have thought about all of this. I think she would say, “Get over it.” She recently passed away. She was a dear friend and colleague who was the Administrative Presiding Justice of the Court of Appeal, Second Appellate District, Division 4, and the Presiding Justice of Division 4 from 1982 to 1996. She was a brilliant jurist, who wore warmth, humor, grace, and style with impeccable taste. And her wardrobe matched. OK, Arleigh, I hear you. I’m over it.

In Defense of Old White Men – A vanishing breed On second thought –Good riddance. June Column 2022

Lately I have been forced to publicly proclaim in similar fashion what courageous people do at A.A. meetings: “Hello, my name is Arthur Gilbert and I am a white male, or, to be precise, an old white male.” There you have it in writing. I have rationalized that I am not responsible for this affliction. But recent experiences have led me to believe that like K in Kafka’s disturbing novel The Trial, I am somehow… guilty. With the recent easing of pandemic restrictions, I have been asked once again to speak and appear at live events. At a hearing before a commission of which I was a member, a speaker, praising the achievements of a highly accomplished nominee, mentioned that in the past, the nominee was appointed to a position that had previously been held by… did she say “old white men,” or just “white men”? No matter. To my ear the tone was tinged with derision. I tried to shrink my slight, elderly frame into the grain of my big leather chair. People avoided my gaze. I jokingly agreed to retire and got a forced laugh that said, “Please do.” The week before, I was asked to speak and present an award to one of my colleagues. At the beginning of the event, light from outside streamed into the room infusing it with a warm pleasant glow. By the time I was to speak, it was dark and the lectern and I were enveloped in what could best be described as dusk on a cloudy day. I am not suggesting that my being at the end of the program was a slight because of my race and age. But is it not well known that elderly people have dim memories? And did anyone consider that I might not be able to read my notes in the dark? Should I get out my cell phone and shine a light on my barely decipherable notes? Turned out I didn’t need my notes. I jot them down, but rarely read them. But what was truly bizarre, the audience was flooded in light from the bulbs in the ceiling. I knew immediately there was something wrong with that. I am not trying to be a showoff, but I have been to the theater. This includes London, Stratford-upon-Avon, New York, and Los Angeles. I acknowledge that when I first walk into a theater, and this includes movie theaters, the lights are on in the auditorium… before the show starts. And the stage is dark. That makes sense. If the auditorium were dark, people would not be able to find their seats. They would be bumping into one another. The theater would have to hire more ushers with flashlights requiring higher ticket prices. Or the theater goers might use their cell phones to find their seats. Then they would forget to turn them off during the performance and you know how embarrassing that could be. But when the show starts, the process reverses, n’est pas? I can tell you straight out that I got through the ordeal. Sometimes one must overcome afflictions and get the job done as they say. And just maybe my age and race had nothing to do with the lighting. Speaking of lighting, my spirits lit up about four years ago when I thought about retiring from the court. Time to give others an opportunity to write dissents. Although I love my work, my colleagues took me to lunch and asked me to stay. I was deeply touched and agreed to stay provide they let me know if… when, I become senile. The problem with that arrangement is that when they tell me, I won’t believe them. For all I know, they already told me. I thought I was losing my mind when I was asked to write a blurb for a book on the law that I thought was excellent and would be of great value to the legal profession. I knew the Canons of Judicial Ethics prohibited my writing a blurb in or on the cover of the book. Nevertheless, I looked up the Canons just to be sure. What I discovered sent shock waves of panic that rattled my psyche. (Refuse to use cliché adjectives about my bones.) What follows are excerpts of my email to the California Supreme Court Committee on Judicial Ethics Opinions (CJEO): Dear whoever reads this email, Hope you are well. My research on the problem I put before you is not encouraging, but I want to be sure. Here is the problem: Two law professors have written a textbook. They asked if I could write a blurb for the book. I told them I doubted it. I knew that it was permissible for me to tout, I mean promote, my own two books, Under Submission and Under Submission Volume II. They are law related, and Judicial Ethics Advisory Opinion No. 65 states that “a judge who has written a law-related article, treatise, or book may use his or her title in promoting the writing, but “cannot promote or critique a legal or nonlegal book written by another.” (Insert #1- Yikes!) That I have never done so with the books I have authored and that all proceeds from the sales go to unnamed legal charities, I suppose, are beside the point. (Insert #2 - for readers of this column.) So to be safe, please do feel constrained to even think about purchasing any book I have authored, and if you do purchase any such book, I don’t want to know about it. Continuing with missive to Ethics Committee: So, it appears that I have answered the question concerning the law professors, but the second part of Advisory Opinion No. 65 sent chills down my spine. I have written over 300 columns for the Daily Journal. In the past, on occasion, I have written about books and law review articles. If I praise a book that I think is of benefit to the legal profession, it appears that I am in violation of Advisory Opinion No. 65. Really? Is that too literal a reading? Sorry for the length of this email. Your thoughts and advice would be most appreciated. If your advice is to stop writing my column, you may be doing a great service to the public. The Committee responded with an expedited advisory opinion. Let’s save time and jump to the conclusion. “Judicial officers may review, critique, and comment on legal education books in legal publications for educational purposes consistent with the advancement of the law, the legal system, or the administration of justice.” And we just better make sure we do so in a manner that is consistent with “the integrity or impartiality of the judiciary.” What a relief. Let me add this opinion does not necessarily reflect the views of the California Supreme Court or any other entity. (Cal. Rules of Court, rule 9.80(b); CJEO rule 1(a).) So technically I may not be out of the woods, to use a hackneyed phrase. So I will avoid the path not taken, and opt for the “path taken”? Is there a difference, Mr. Frost? I still shall continue to write about, praise or criticize articles and books and articles about the law, and hope I will not violate the law. So I now praise a recent book by fellow columnist Myron Moskovitz, Strategies on Appeal (CEB, 2021). In 14 chapters he tells you everything you want to know about appealing a case, even what to do about losing. You expect me to go into detail about the book? Not a chance. l leave it to Myron to further elaborate on the multitude of facets in appeals and practicing law which he does in clear concise prose as well as in his columns. And I advise everyone, not just lawyers and judges, to pay attention to Chapter 6 on writing the appellant’s opening brief, “Keep It Concise.” I will not criticize the drafters of Advisory Opinion No. 65 who were compelled to interpret the Canons of Ethics. I hope they were not old white men. Does it matter? The old white men I know will soon be disappearing. What a relief. But… it just occurred to me, they… we… will be replaced by other old white men. That means… the title of this column may be misleading. The very thought of old white men is tiring. Think I will have a cup of hot tea and maybe take a nap.

I’m Just Asking or The Fear of Offense May 2022 Column

In my March column “Biased About Being Biased,” we (“we” because, in some mystical way, I consider my readers co-authors) tried to negotiate a path through the forbidding terrain of implicit bias. To refresh our memories, I include my last paragraph: “So, while my colleagues and I strongly support education and awareness to heighten our sensitivity to implicit bias, I cannot help but pose the question of whether we may take that concern too far? Can we carry our concerns about a person’s sensitivity respecting offensive language to extremes? In our judicial opinions, when quoting relevant language that contains offensive words, must we edit and delete the language? Do we use initials in place of words because “everyone knows what the offensive words are”? Our cases are driven by facts, and, depending on the circumstances and relevance of those facts, in subtle ways we may blunt the edge of justice by the deletion of words or phrases that may alter those facts. Are we to condemn those who use offensive words in the context of a speech or article for the purpose of condemning the use of those words?” Oh, yes, there was that final one sentence paragraph at the end of the column: “I hope to summon up the courage to pursue this topic in my next column.” It was after the column was published that I realized I had not deleted that ill-advised last sentence. I reproached myself for this oversight with scatological phrases you hear on television all the time. I attribute this oversight to a state of delirium, experienced by me and many of my colleagues trying to apply the legislation meant to curb perceived inequities in the Penal Code. But eventually (a word of hope), our Supreme Court will figure it out. But now that I am committed to writing this column, this is my concern – the fear I sense among friends and colleagues of offending someone by a remark or, even worse, a written word or phrase. Sensitivity to the legitimate feelings and sensibilities of others is a necessity and a moral obligation as we become aware of inequities and biases we ignored or overlooked in the past. Many businesses and professions require their employees to attend classes, lectures, and discussion groups to achieve this goal. All of us in the judiciary have attended invaluable classes and discussion groups where we, that includes me, discovered unconscious biases. Our education was revelatory and heightened our sensitivity. Our goal is to be aware and, when needed, to change our behavior. But when one’s state of mind becomes so troubled and concerned with saying or writing the wrong thing, creativity is stifled, precision is blunted, and communication with one another becomes vapid. The compulsion not to offend has poured over into other aspects of our lives. For example, I have become nervous playing the piano. Borrowing an observation from Danish pianist and humorist Victor Borge, the piano has a segregated keyboard. I recall playing a harpsichord where the color of the keys was the reverse of the piano. I was going to switch instruments, but blues and bebop don’t cut it on the harpsichord. In a recent edition of The Week magazine, I read that some members of a “Diversity, Equity and Inclusion Committee” criticized a DJ at a school charity event for dressing up in blackface. But the DJ was Black. Many publications now avoid the word “obese.” I suppose “heavy-set” and “overweight” are not any better. I often run my columns by my wife Barbara and my Judicial Assistant Bonnie Edwards before publication in the Daily Journal. I occasionally act on their admonitions like, “Are you really going to write that?” or “You’d better delete that.” I have written about what follows in the past, but it bears repeating. It was a column I ran by some friends, resulting in a unanimous vote that I delete the word “niggardly.” That was not the issue I was concerned about. The word refers to a person who is stingy. I checked the word’s etymology. It was first used in Middle English and derives from Old Icelandic, meaning “parsimonious.” I protested, just because the word sounds like a grossly offensive word, that is no reason to delete it. I argued that to do so is the insult. There is a larger issue here. “Dumbing down” questions the reader’s intelligence. But there is another argument. The “offensive” word is not one often used. Was I unconsciously using it to make a point, and to rile up readers? Why not just use “stingy,” or “parsimonious,” if one wants to sound fancy? This argument was met with a degree of understanding, but with the caveat, “wait awhile.” So…I deleted the word for that column but felt compelled to write about it in a subsequent column. And now here it is again, still unresolved in this writer’s mind … and in other minds as well. I broached the subject at a dinner party last week with a group of affable friends including those of diversity. The discussion was amiable. I think everyone saw the point of view that use of the word was acceptable. But I can’t be sure we resolved the issue. Probably due to the wine. But let’s not dwell anymore on one word. We could discuss other words banned from use, like “obese.” Enough! Let’s turn our attention to what there is to celebrate in our changing world. We have an exemplary judiciary that reflects the rich diversity of our state. And this includes our Supreme Court’s outstanding justices and an extraordinary Chief Justice. She handles a multi-billion-dollar budget; manages the courts through the pandemic; writes scholarly opinions; gives speeches with substance, humor, and insight without notes; and exudes warmth and humanity. Trust me, I get no points for this. In conclusion, I can say that what we extol dwarfs a predicament over a word. Oh dear! I used the word “dwarf.” HELP!

RBG And Goodbye to Ellis Column April 2022

Yes, in my last column I promised to continue “our” (I guess it’s really “my”) discussion of implicit bias and the hazards of an over-correction to avoid what some might perceive as offensive words. Despite warnings from friends and colleagues of dire consequences if I forged ahead with this mission, I resolved to do so. Only it will not happen in this column. No, I did not chicken out. It’s just that this is my April column, and “April is the cruelest month.” So, why not write about something wonderful and uplifting for April? And in the more cheerful month of May, it might be safer to write about a topic to balance our unbridled May joy. A few weeks ago, I had the pleasure attending via Zoom the Second Annual Lecture on the Occasion of the Birth of Justice Ruth Bader Ginsberg sponsored by the National Judicial College. Justice Goodwin Liu delivered the lecture. “Lecture” seems too formal, too staid to describe Justice Liu’s warm and touching tribute. I prefer to call this a substantive reminiscence. The joy that Justice Liu experienced as RBG’s clerk, his time with this remarkable jurist, set an invaluable model for him to follow when he became a member of our Supreme Court. What Justice Liu learned and what he put into practice in his own distinguished judicial career sets a standard all judges should strive to achieve. Indeed, all in the legal profession and beyond can learn from the example set by RBG. I hope I can, pardon the expression, do justice to Justice Liu’s moving tribute. What Justice Liu conveys to us in describing RBG’s approach to judging we can add to Socrates’ famous dictum about the ideal judge. Justice Liu became one of RBG’s clerks, just when the U.S. Supreme Court was considering the highly controversial case of Bush v. Gore. Despite the highly charged atmosphere in light of what was at stake in this momentous decision, RBG maintained collegiality and respect for her colleagues with differing points of view. This was motivated by something more than the practical acknowledgement that there will be other cases to decide in the future, but reflected her fundamental decency and respect for others. Please note the acronym “SCOTUS” will not appear in this column, but RBG is ok. There is a book on my desk, in which I occasionally peruse a passage or two when I feel the need. It is titled, “Don’t Sweat the Small Stuff… “ by Richard Carlson, Ph.D. (Hyperion 1961). Justice Liu’s talk freed me from the compulsion to consult this book now and then, at least when I am drafting an opinion. RBG teaches through example that we should “sweat the small stuff.” The opinion should contain only the “stuff” that is germane to the opinion. In a well-crafted opinion, everything counts and the sweat is worth it. I try, but no doubt fail, to follow this axiom in anything I write, including this column. RBG teaches that a judicial opinion requires a good lead. Write a summary of the case in clear, concise language. I found this approach is not only invaluable to readers of a judicial opinion, but this tests the thinking of the writer. It supplies the answer to the question, “What is this case about?” I strongly advise this approach for those who write appellate briefs. And I am compelled to add that the attributes “clear” and “concise” apply to the entire opinion. Do we need a plethora of 70- and 80-page opinions? Often that is a good way to lose the reader. From this follows RBG’s advice for writers to use their own voice. I read that to mean one’s authentic voice, the one that is not forced or artificial. The one that reflects you, the writer. The writers who read and re-read their opinions, and by doing so edit and edit some more, are more likely to achieve this goal. And Justice Liu concluded with the most important lesson he learned from RBG, the effect the law has on people, not as an abstraction, but as “a practical tool by which real people wield power and exert force and make claims on one another.” These invaluable lessons are inspirational and practical. They make us better in our professions and remind us of our better natures. And now a transition for a sad goodbye to premier appellate lawyer, Ellis Horvitz, who passed away last week. I, and countless others, admired Ellis as an advocate, but I also was fortunate to call him a friend. Ellis and I were brought together by our admiration for a unique jurist. Many decades ago, I, along with a multitude of recent graduates who passed the bar, were sworn in by then California’s Chief Justice Phil Gibson. Chief Gibson spoke to us with such warmth and encouragement that it made a lasting impression on me. Many years ago, I was invited to speak at the Monterey Bar Association and met Gibson’s son, Blaine. We stayed in the restaurant till closing, long after everyone had left, and talked about his father. We met several times after that first meeting, and through Blaine, I learned about Gibson’s exceptional life. This, in turn, prompted a few columns about this remarkable justice who did not covet the limelight. I received a call from Ellis who informed me he had clerked for Gibson. What followed was a lunch that lasted at least three hours. Ellis told me stories about Gibson. In many ways, his portrayal of Gibson’s character and sensitivity were similar to Justice Liu’s description of Justice Ginsburg. I would guess that the soft-spoken Ellis, with his insistence on perfection, could be forceful and demanding of excellence in the firm that bore his name. But he had tears in his eyes as he related stories about Chief Gibson. I believe the influence of Gibson as a person and jurist greatly contributed to Ellis becoming a premier appellate lawyer. Ellis and I appeared together on panels devoted to legal education, and Barbara and I enjoyed dinners with Ellis and his wife Angela. Although we say goodbye Ellis, the example he set lives on and on.

Biased About Being Biased March Column 2022

My colleague Justice Tangeman brought to my attention and my colleagues in Division 6 a survey taken in July of 2020 by the National Judicial College. In 2017 the college launched an informal monthly, non-scientific survey to the college’s more than 12,000 judicial alumni. The goal was to provide insight into beliefs of the judges all over the country. The survey posed this provocative question, “Do you believe that systemic racism exists in the criminal justice system?” 634 judges replied. The breakdown of their vote was 65.24% - yes, and 34.76% - no. This survey prompted me to ask how judges responding to the survey defined racism. A prominent attorney friend of mine thought the definition of racism has radically changed from how we defined that term in the 1950’s and 1960’s. In those days many people thought, perhaps naïvely, that racists were those who were openly explicit in their prejudice. They were not shy in opposing desegregation and unabashedly used highly offensive language to describe persons of diversity. In a recent article published in the National Judicial College’s Journal, “Judicial Edge Today,” Anna-Leigh Firth comments on the judges’ reaction to the poll. Their reaction does not suggest the more narrow definition of “racism” I described from decades ago. The majority of judges viewed “racism” as a reflection of implicit bias. One judge wrote, “[M]any people don’t recognize that bias exists or are unwilling to admit it.” On implicit bias, another judge wrote, “Of course [implicit bias exists]. The data doesn’t [sic] lie. The burden on us judges is to, first, acknowledge the problem and then to work diligently to eradicate the problem.” Another judge wrote, “Any judge who is not educated on the reality of systemic racism and implicit bias and aware of the consequences of these issues should not be on the Bench.” Most judges throughout the country believe in the existence of implicit bias. They understand that judges, and people in all walks of life and professions, may unconsciously act on those biases. When I use the word “people,” I am referring to all people. That includes people from diverse cultures and ethnicities. Los Angeles Superior Court Judge Helen Zukin, who spearheaded the judicial mentor program, introduced in a Zoom meeting the noted scholar and expert on implicit bias, Professor L. Song Richardson to speak to judges on the Governor’s Judicial Selection Advisory Committees (JSAC) on implicit bias. In her enlightening discussion, Professor Richardson, whose mother is Korean and her father Black, spoke of how she, with her sensitivity and expertise on the subject, had demonstrated her own unconscious bias. She and her husband were finishing their dinner at a Chinese restaurant. She was then Dean of the Law School at the University of California at Irvine. She was in a hurry to get back to school to grade papers and attend to administrative matters. She asked for the check from a Chinese gentleman standing nearby. You guessed it. He was not a waiter but a patron. Professor Richardson and I corresponded, and she noted a column I had written years ago about my experience driving with my wife, Barbara, through the Korean section of downtown Los Angeles. A van driven by a man, who appeared to be Korean, suddenly pulled in front of me, causing me to slam on the brakes to avoid crashing into the back of his van. Cars behind me came to a screeching halt. I pulled into the adjacent lane and saw that he was laughing at me. I stepped on the gas, tires screeching, and pulled away from him. I was in a rage. Barbara said, “take it easy,” but I wasn’t listening. By the way I never act this way at oral argument. And Barbara’s comment was expurgated. I deleted the word that preceded “take it easy.” Back to the action. The driver in the van followed me, laughing all the way. My rage reached epic proportions. I sped away from him, but he kept following me. I pulled up to a red light and he pulled up next to me, still laughing. He rolled down his window. I didn’t see a weapon, so I rolled down my window. I could not hear clearly what he said, but I could read his lips, “I am so sorry.” I, pointing to my head, said, “I thought….” He smiled and nodded that he understood. The light turned green. We gave each other a friendly wave goodbye and drove off. It was half a block before I could find a place to pull over to the curb for a few minutes. Barbara squeezed my arm. So, while my colleagues and I strongly support education and awareness to heighten our sensitivity to implicit bias, I cannot help but pose the question of whether we may take that concern too far? Can we carry our concerns about a person’s sensitivity respecting offensive language to extremes? In our judicial opinions, when quoting relevant language that contains offensive words, must we edit and delete the language? Do we use initials in place of words because “everyone knows what the offensive words are”? Our cases are driven by facts, and, depending on the circumstances and relevance of those facts, in subtle ways we may blunt the edge of justice by the deletion of words or phrases that may alter those facts. Are we to condemn those who use offensive words in the context of a speech or article for the purpose of condemning the use of those words? I hope to summon up the courage to pursue this topic in my next column.

It’s All in the Mind Ask John Blumberg, Esq. February Column 2022

Two score and a few more years ago, I was a student at the famed California Judges College. I use the quaint antiquated expression for all those yesteryears because during that distant time, I was a municipal court judge. That court was abolished over a score ago. By then I was already a superior court judge. With the abolishment of the municipal court, superior court judges had no one to feel superior to. Oh well. But getting back to Judges College in the 1970’s (may save you the trouble of looking up how many years there are in a score), there was a unique class that made a deep impression on me. It was not about doing things like sentencing someone, holding someone in contempt, or dividing community property. This was a course that became so imprinted in my memory that I have carried it with me for the entire two score and then some of my judicial career. The instructor was a psychologist who I believe was named McCormick. If I am mistaken on the name, I hope the professor would nevertheless be pleased he made such an impression on me. What I learned from him informs who I am as a judge. Hope that doesn’t induce some readers to move on to another column. Bear with me. The psychologist, McCormick?, showed us a photograph projected on a screen of an ordinary empty room in a simple wooden house. At least that is what everyone in the class said they saw. But then on the screen we saw a second photograph of the same room with people inside the room. Now there was nothing ordinary about the room. The people did not appear to be Hobbits or fugitives from a Barnum & Bailey Circus. The people in the room had to bend over and crouch because the ceiling, walls and floor were slanted. The contours of the room were now seen as they, in fact, were. A lesson smacked me in the face with a lasting epiphany: Things are not always what they might first appear to be, nor are our immediate perceptions, colored by personal experience, necessarily accurate. Note, I hope no smart-ass reader will ask, “How do we know the rooms in the photographs projected on the screen were the same?” A well-known attorney, who later became a judge on the 9th Circuit, was in court arguing a motion on a complicated legal issue. His opposing counsel seemed to be missing the point. The judge asked the trial attorney to step out in the hall with opposing counsel and explain the intricacies of the motion to him. The attorney said to the judge, “Your Honor, I can explain it to him, but I can’t understand it for him.” Our profession, like all others, involves imparting information. And that involves the mind. Let us avoid the meaningless “meeting of the minds.” If the information one is imparting is presented so that another reasonably intelligent person cannot understand it or misinterprets it, all is lost. And this takes me to noted trial attorney John Blumberg. He wrote a book that is a must read for all lawyers and judges, though it is directed to trial lawyers, Persuasion Science for Trial Lawyers (Full Court Press, 2022). Blumberg’s comprehensive research into how the mind understands and receives information is an invaluable tool for trial lawyers who must communicate with juries and judges. But it also serves as a vital source of understanding how we receive and interpret information. And the book is written so that the wealth of scientific information of how the mind functions is in a prose style that is accessible and clear. It captures the reader’s interest, stimulates self-reflection, and provides enlightenment. It is an example of writing that enables the reader to understand what is written without having to ponder the meaning of sentences and without having to read them over a few times. But this book is not about writing per se. It is about how trial lawyers can best persuade juries by providing insight into the science of how the mind processes information. It’s not about rhetoric, or polished phrases, though they may be effective when appropriate. But they are useless when a juror is likely to misunderstand the message, often to the detriment of the client. What is most important for lawyers, and anyone living in a civilized society, is the ability to make an informed, persuasive argument that avoids barriers to receiving and considering that argument. Blumberg gives you the way to do this, and the way he presents the information proves his point. No matter one’s perspective, every case is a story and how that story is told and how it is understood determines the outcome of a case. In the chapter “Keep it Simple,” Blumberg cites the famous paraphrase of Einstein that is etched into my brain, “Make it as simple as possible, but no simpler.” In the chapter “Mental Shortcuts and Biased Preexisting Beliefs,” Blumberg explores heuristics, which are mental shortcuts, and the role they play in processing information. The shortcuts often involve prejudices and biases. Based on scientific studies, Blumberg shows us the way to avoid these barriers to understanding. All of us are faced with such barriers. In a past column I reviewed a law review article, “Inside the Judicial Mind” (Cornell Law Review, Vol. 86, May 2001) that discusses ways in which “cognitive illusions” lead to errors in judicial judgments. Judges would do well to read and reflect on Blumberg’s insights. What is particularly useful today is the chapter “Finding Shared Values of Liberals and Conservatives.” Yes, those values exist and Blumberg demonstrates how they can be used to benefit the client. But that chapter is useful in how we can carry on discourse in today’s fractured society. In his final chapter, Blumberg offers some valuable final thoughts. He posits that there is more to advocacy than confidence, respect, and civility. This involves the recognition that not all jurors think as we do or have the same values. Blumberg demonstrates how to present a case so that jurors of widely differing values and beliefs can understand and appreciate the values underlying the story the lawyer tells them. This is the science of persuasion.

My New Year’s Resolutions for 2022

1. Will quit mentioning the number of columns I have written for the Daily Journal. Nobody cares that this is #324, or somewhere around that. Anyone who does, let alone admit such a thing, should have their head examined. 2. Will not grouse about the grammatically incorrect but politically correct “their” to avoid the cumbersome “his or her,” I mean, “her or his.” See Resolution #1 above. 3. Will not consciously make what could be interpreted as smart-ass remarks during oral argument. Prologue to example that follows: At the beginning of a previous oral argument via Zoom, I gave my usual welcome non-threatening greeting to the lawyers about to argue. “Welcome. Please keep in mind that what you see of yourself and your surroundings we also see, but do not worry if your dog barks or a child happens to wander into the picture. We understand. It’s OK.” Now the example: In the middle of a lawyer’s argument, our three-judge panel heard a high-pitched, loud, sustained, horrifying, deathly, primal scream, or was it a shriek? Before my colleagues and I could process what happened, the shriek stopped but then began again. The lawyer kept on talking as though nothing happened. I tried to gather my quickly vanishing composure. I blurted out, “My heavens (or something like that), what is happening? Are you alright, sir?” (“Sir,” quaint expression of an earlier age where civility… never mind.) Reply of the lawyer, nonchalantly, “Oh that’s just my macaw.” Ho Hum. Now, finally, the resolution: If I said, “Well, I hope that wasn’t a comment on your argument.” If I did say something like that, I will not say something like that again. Columnist’s educational bonus: A macaw is a large parrot and known in zoological circles as a zygodactyl. Additional educational bonus: The first and fourth toes of zygodactyls point backwards. 4. Will not be a priggish purist by continually complaining about the refusal, or is it the inability of people to use certain adjectives to describe an event, a person, an artist, a food, a movie, a book, or anything they like as “amazing,” “incredible” or “fantastic” just because whatever it is…. is ….awesome. Horrible. And “incredible”? If something is “incredible,” it is not credible, like misguided people who bolster their arguments with facts that do not exist. Will resist using expressions from earlier times. In my father’s time, well-performed Dixieland music was “hot.” Generally, what was good was “hot.” In my day, if music was good, or anything was good, it was “cool.” But then and now, desirable members of the opposite sex from the perspective of either sex were “hot.” If the preceding sentence was offensive or hurtful to any reader, I suggest you move on to another column. 5. Will not criticize the California or any other Supreme Court…. Well, if I do, I will do it tactfully and with the Code of Judicial Ethics in mind. Will not make a big deal that in a recent Supreme Court case there appears this language: “The dispute in this case centers around the chapter of the Health and Safety Code entitled.…” I am sure “they” meant to say … “revolves around.” To center around is illogical. The center of a circle is… well, it’s the center, like a dot. The dispute could center on the chapter. Or it could revolve around the chapter. I will not criticize the usual response, “We all know what they or the author meant.” I suppose I should just let it go…but, would it not be better if …? Never mind. 6. Speaking of Supreme Courts… Will not continue to criticize what I think are unnecessarily long, verbose opinions that often lose, at least lose this reader. Do we gain or lose insight from partially concurring and dissenting opinions to parts of the majority opinion? On occasion, longer is necessary, but longer is not always better. Judicial opinions need not be ersatz law review articles, or overwrought political harangues. Justice Holmes, and for the most part Justice Cardozo, wrote short, concise opinions. So did Justice Traynor. So why do we not use as a model those iconic (sorry, strike the ubiquitous “iconic” and substitute something like “eminent”) jurists, and commit ourselves to write with the clarity they treasured? Yes, many statutes today are near incomprehensible; what else is new? Still no excuse. Oh, and one other thing: Will try not to complain about the Supreme Court letting issues fester for intolerable periods of time, while appellate courts write a variety of conflicting decisions that fragment any notion of justice and foster conflict rather than resolution. 7. Will not swear at my cat when he walks on the keyboard of my laptop and deletes the significant (better than “landmark”) opinion I have just finished. Will acknowledge that he did me and everyone else a favor. 8. Will do my best to refrain from criticizing those who take credit for ideas and programs that others have thought of, promoted, and helped initiate. 9. Will try to be optimistic about the future. Sorry, I can only try. But I can be certain about a resolution that is an acknowledgment: Let’s note our appreciation for all the staff, the clerks, court reporters, security personnel, research attorneys, and judicial assistants who make (get ready for a cliché) the wheels of justice grind at whatever speed. 10. And Happy New Year and our commitment to make it so.

Who’s in Charge?

My cats supervise my columns while I write them. Quite annoying. Wardell, named after the great tenor sax player Wardell Gray, is…gray. And Wardell has an abundance of feline grey matter. He knows how to open drawers and pull everything out, how to run down the hall with my slippers, a feat usually reserved for dogs, and how to run into the shower when I take one and mostly avoid getting wet. Sorry, I got carried away. This column is not about my cats. I just mention Wardell, not his sister Natalie, because Wardell has assumed the role of supervisor while I type this column. Knowing Wardell, he is likely to step on some keys that may cause confusion or dismay in some readers. If so, blame it on Wardell. Let’s segue into our main topic with a cliché about time; take it from me, “it flies.” I have been around long enough to know about its deceitful behavior. In one’s later years it can appear to move at the speed of light. At other times, it leads you to believe it moves at the pace of the slowest moving animal known to humankind, the three-toed sloth. In one of my past columns, I wrote about having my foot in the way of the redoubtable Presiding Justice Mildred Lilly as she was making her way to the lectern to speak to the Commission on Judicial Appointments. Her leg hit my foot. As I watched her begin to stumble, time stopped. So did my heart. During that eternity, that lasted nanoseconds, I made a bargain with a higher power not to let her fall. She didn’t. Whew! Faust made a better deal. But we can all acknowledge that time does not stand still. When I was a kid, I knew time marched on from going to the movies with my parents. Before the feature we saw a summary of the news called Time Marches On. There it was, filling the screen in bold block letters, tilted at about a 20 degree angle. I had no doubt that time did not stand still because the authoritative voice of the announcer reinforced the concept. In a stentorian voice he said, “Time Marches On.” He then narrated as we saw glimpses of battles in Europe and the Pacific during WWII, and then for a change of pace concluded with a few lighter moments, a chimpanzee doing somersaults. The announcer convinced me that time marched on but did not clarify the pace of the march. Was this a fast John Philip Souza march or the march of a funeral dirge? Time marched, more like dragged along, during grammar school as I waited for summer vacation. It moved at the pace of a slug during my tax course in law school. Yes, in the beginning, time marches slowly, but, believe me, it picks up momentum and flies, reaching warp speed from the perspective of later decades. Clichés, though trite, are indisputably true. Have you ever seen a rolling stone gather moss? It seems like yesterday (speaking of trite, sorry) when I was a law student. Note: I still am. And so are all my colleagues. In those days, the professors ruled. They questioned us, and, yes, we questioned them and debated with them, but we showed up on time for class. Yes, we grumbled now and then, but the professors set the agenda. We could suggest change but did not dictate change. Nowadays it seems the roles have become blurred and, in some instances, reversed. I admit when Dean Prosser paced back and forth before us in that semicircular tiered classroom, thousands of tiny legs of terror scurried to and fro in the limbic portion of my brain carrying a teeny but powerful loudspeaker that screamed “Please, Please, Do Not Call on Me!” But it seems different today. I have spoken to law professors and law school students individually and in their classes and what I sense is worrisome. And what I have heard from a professor or two is in so many words, “I sure hope I don’t piss off the students.” On a few occasions I participated in a law school class at a prominent university to act, no, I mean be, the judge in a practice session for a moot court competition taught by a professor friend of mine. Most of the students who participated in the practice session were prepared, eager to learn and responsive. But on every occasion when I participated in the practice sessions, a few students sauntered in late, and displayed resentment if pressed when their responses to questions were not responsive or simply wrong. They were sullen and churlish during the discussion after the moot court session. I did not sense a lack of respect for the law professor among the few recalcitrant students. He was extremely bright, conscientious, well liked and admired by his students. Does my limited experience reflect a trend? I cannot say how pervasive this phenomenon is, but my discussion with a few law professors leads me to believe my experiences were not isolated incidents. My cynical conjecture about the present-day provenance of this phenomena in law school, in addition to changing notions about education in general, and changing societal mores, may be the prohibitive cost of a law school education. What law school wishes to anger students and lose enrollment when the fees their parents pay are in the thousands of dollars? But I am convinced there are other more pervasive causes of what I see as a troubling phenomenon, the students running the agenda. And it began a few decades ago. I wrote in one of my previous columns about students at New York University Law School refusing to participate in a moot court problem concerning a gay couple who wished to adopt a child. The students assigned to represent the social services agency refused to participate because they were opposed to the position of the agency. I argued that when the students become lawyers, they will be better equipped to represent the adopting couples by practicing in moot court to take the opposite position. After a standoff, the law school shamefully gave in and let the morally righteous students off the hook. Not so sure how successful those students will be if they represent gay couples in real life. Social critic Nat Hentoff agreed with me and quoted my column in his book Free Speech for Me – But Not for Thee (1992, HarperCollins). I certainly agree that students should have a say in their education and their suggestions for improvement and change should seriously be considered, but someone has to run the institution. Generally, but not always, those with experience have the last word. There are moves to lower the standards for professional school admissions. Some have argued that this is necessary to admit more people of diversity into the professions. How insulting this is to all people. Some of our best judges, lawyers, doctors, and other professions are people of diversity. Linguist John McWhorter is a controversial figure. His ideas provoke a thoughtful discussion about standards of behavior and education. He argues that everyone can and should meet high standards. That is what we expect from a brain surgeon operating on us or a lawyer representing us in a complicated lawsuit. Some might argue this is discriminatory. Oh, oh, there goes Wardell. He is heading for his box.