What Goes Around Comes Around--But Not Always

A few months ago I spoke at the investiture of Federal District Court Judge Valerie Baker Fairbank. One of the other speakers, a retired senior partner from a well-known law firm, praised Judge Fairbank for her intelligence and keen intellect. He admired her work on the Los Angeles Superior Court. He noted that when she had presided in law and motion, she read all the cases he had cited in his brief. I can tell you that got me and all the judges in the audience thinking.
After that revelation, I will even glance through a law review now and then. The other day, while leafing through an old issue of the California Law Review, I came across a glowing review of Professor John Hetland's book on Real Estate Secured Transactions. Professor Hetland is the world’s expert on the subject. He was also my professor at law school. And that got me thinking about the last episode of the Sopranos.
In the final scene we see Tony Soprano and his family dining in an Italian restaurant. From previous episodes we know his life is imploding. He is getting older; he has money problems; he has had a rival killed. Suspicious looking people come in and out of the restaurant and pass his table. Will he be shot right there in front of his family? The tension builds. Just when you think something momentous is about to happen, the screen goes dark. As you curse the cable company, the credits show up on the screen. The dark screen reminds you that this is a show that reflects, but is not real life. And like real life there is no tidy end. Stephan Sondheim explored this experience in his musical “Into the Woods.” What happens to some of the characters in fairy tales that seemingly end well? Jack, from Jack and the Beanstalk, Cinderella and Little Red Riding Hood appear to have happy endings. But what about their lives after the "end" of the story? They, like all of us, continue to live in an uncertain world where we are never really out of the woods.
It is the same with trials. They seemingly bring closure to disputes. But even after appeals, reversals, and remands, when the judgment is finally final, is that truly the end? What happens after the lawsuit? Is the judgment collectible? What happens to the parties? For better or worse, their lives go on. So what does this have to do with Professor Hetland? Running across his name reminded me that our lives are more a continuing saga than a series of distinct dramas with discrete endings.
More than four decades ago I was biting my arm in his secured transactions class. That’s what I used to do when I was scared. So what was there to be scared of? Hetland, I mean Professor Hetland, was a nice guy, relaxed and easy going. My fear was engendered by the certainty that I did not understand secured transactions. During his lecture Professor Hetland would casually throw a piece of chalk up in the air. It seemed to hang in the air before landing in his palm. It reminded me of an early scene in Stanley Kubrick’s film, "2001: A Space Odyssey." A primitive tribe, our ancestors, defeats another tribe in a fight. In triumph, a member of the winning tribe throws into the air an animal bone he used as a weapon to kill a member of the lesser intelligent tribe. The bone rises in the air in slow motion and then becomes a space ship floating through space, millions of years later. This is yet another example that endings are illusory.
But getting back to Hetland. As he lectured he took small steps back and forth in a kind of fox trot, all the while nonchalantly throwing into the air his chalk. I was mesmerized. That chalk was my psyche . . . and chalk breaks easily. One day in the middle of his fox trot he stopped and asked a question. It was about A conveying property to B, but C claims to be a bona fide purchaser. " In a 'race notice jurisdiction,' who prevails?" Instantly I was bewildered. How could letters convey property? There was a short pause after the question –followed by "Mr. Gilbert?" I muttered two words. The first word was “Oh.” My heart raced. My palms sweated. My answer---It was not the right answer. Why did I not have the right answer? Because I did not know what the hell Professor Hetland was talking about. Not his fault.
That appeared to be the end of an inconsequential drama one afternoon in law school. After class that afternoon I went to my job at the Lawrence National Laboratory in the hills of Berkeley. I drove a bus around the complex and picked up astro- physicists, mathematicians, and other smart guys and women with slide rules (that's what they used in those days). I dropped them off at various buildings and at the end of the day took them back to campus. I was sure they could figure out what Professor Hetland was talking about.
I felt bad about not having the right answer to the question. That four other students called on after me also failed to give the right answer gave me little solace. Dwelling upon my poor performance in class, I made a sharp turn around a corner of the building that housed something important --the cyclotron. I bent the bus's fender when I clipped it on a railing adjacent to the building. Damn! Two rotten things in one day. Incidentally, I did pass the class, law school, and the bar.
Would I ever again have contact with Professor Hetland and secured transactions? I thought not, but we are not authors of our life’s story. Who would have ever thought I would come to have a hand in shaping the law in California? I bet not Professor Hetland. And who would ever think that some 20 years later Professor Hetland and I would meet up again. I was on the appellate panel hearing a case involving a big land deal. You guessed it. John Hetland was lead attorney for the appellants. Only this time the conveyances were made by real people not letters, and I would be asking the questions. I said to myself, "It's payback time." Of course I would be fair, but I could not help but think that "what goes around comes around." I lay awake nights dreaming up impossible questions for Professor Hetland. There would be no throwing of chalk in the air.
Finally the day of oral argument arrived. We took our seats on the bench and the case was called. And there was Professor Hetland. He looked the same. Doesn't this guy ever age? He looked cool and unflappable. I imagined in Professor Hetland's attic a hideous portrait of him, years older, a twisted depraved visage looking malevolently at the world. I redirected my attention to the courtroom as the ageless Professor Hetland approached the lectern to address the court. And then it became clear that that day in class years earlier was not the "end" of the story. And then it happened. It was so . . . so involuntary. My heart began racing and my palms were sweating. I stammered out some questions, but he handled them like Rod Laver returning an easy serve. Nothing had changed. I still didn’t know what the hell he was talking about. But later, as I reviewed my notes on Professor Hetland's argument, I understood the issues -- I think. Professor Hetland won.

Memories are Made of This-Part II

We explored memory’s fallibility in my last column (D.J. January 16th 2007), remember? We learned that memory carries with it awesome responsibility. It can uplift one to heights of ecstasy, but its destructive force can plunge one into the abyss. It can destroy reputations, opportunities, even life itself. DNA evidence has proven memory wrong. Yet, however faulty and confused, memory often asserts its claim with certainty and arrogance. Judges take note.

In my last column we pondered how to resolve the clash of memories concerning whether it was the pianist Sviatoslav Richter or Glenn Gould who dismantled the Steinway at the beginning of a concert at the Harmon Gym on Cal’s campus in Berkeley in the early 1960’s. In this column we marshal the evidence that ineluctably leads us to the answer.

As you recall, my friend, who I called D to protect her privacy, and I attended a piano recital at the Harmon gym in 1960 or 1961 (as I shall explain we now know it was 1960),where the demolition occurred. Our respective memories agree on that.

Incidentally, D, who upon reading my last column informed me that the childish use of the letter “D,” her nickname, to protect her privacy, which needed no protection in this matter, was unnecessary. Apparently she is not a Franz Kafka fan. So in this column I shall refer to her as Deena, her name, but with no assurance that she might have preferred I stick with “D.”

Deena acknowledged that I accurately described the details of the manner in which the destruction took place. Up to this point our memories are in, please forgive me, perfect harmony. It is to the question, “Which pianist savaged the Steinway?” that Deena’s memory and mine take divergent paths, and that could make all the difference. One memory leads to a faithful recreation of the past; the other to an imagined reality existing only in neurons, synapses and memory cells on sabbatical. Deena says the pianist was Gould, “you know how eccentric he is.” I say it was Richter, no buttressing argument necessary; that is what I remember.

We spend two columns on this quirky event because the underlying issues involve the lifeblood of our justice system, memory. This is something of far greater consequence than Maurice Chevalier and Hermione Gingold singing "I Remember It Well" from the musical Gigi. Trials attempt to recreate events of the past based to a large degree on memory. Pity the poor litigants, the facts of whose cases depend primarily on memory. If Deena and I were the only witnesses in a trial to determine which pianist desecrated the Steinway, how would the trier of fact judge our credibility? We are both sincere and certain.

At the conclusion of this column I will render my decision on who was the unruly pianist. In the ensuing discussion I reveal a rare glimpse into a judge’s decision making process so that attorneys, litigants, and the public will appreciate the effort and care judges take in reaching the “right” decision. Some might protest that it is unseemly for me to render a decision in a case in which I am a witness, that the decision will be tainted, uncitable, and subject to ridicule. I will not argue the point. I only ask that you consider the facts that I faithfully relate with scrupulous accuracy and decide whether the decision is correct. If the Supreme Court reverses on a technicality, or even worse depublishes it, we still will know what happened.

In my last column I tried to resolve this conundrum for the trier of fact in a plea for help. The person or persons who provided information leading to resolution of the dispute would receive honorable mention in this column and I would make a contribution to legal aid. I received numerous e-mails from a variety of people who were not shy about sharing their views even though most had not been at either concert. A piano dealer said it had to be Gould because the act would be consistent with his personality. Many others agreed with this assessment.

You might also recall that in my previous column, I said I was speaking one evening with some friends about the incident, and Joan Booke chimed that she had attended the concert and remembers quite clearly who the pianist was. I withheld disclosing what Joan said because I did not want to influence anyone who might contact me with the information I sought. Now I will reveal what Joan Booke said, “It was Richter.” She remembered the event quite clearly and she also remembered that she had not attended the Gould concert.

I sent my column to Deena, and she called me to assert once again that I was wrong about the concert. I told her of Joan Booke’s recollection and Deena reminded me that I, a judge, should realize that witnesses’ memories are often faulty. I suggested that this insight also applied to her. I acknowledged that recollection is often flawed, but that Joan was an independent witness who had not been coached. Moreover, she had no interest in the outcome of the dispute and gently chided me for pursuing the issue. “Why not just let Deena believe she is right, and leave it at that? Is it so important for you to be right?” I told Joan that however self-serving it may sound, my goal was not to be “right,” though it would be a comfort to know my memory was grounded in fact rather than imagination. I was in pursuit of the truth and a decision on the merits.

Another wrinkle in this case is that Deena is relatively certain she did not attend the Richter concert. And Joan is certain that she did not attend the Gould concert. And I am certain I attended both concerts, and absolutely certain that Deena and I had attended the Richter concert together, and moderately certain we had also gone together to the Gould concert.

It is also noteworthy that Deena and I remember exactly what occurred during each of the three episodes when various parts of the piano were removed, and the audience’s reactions. She even remembers her remark to me that the piano will be in shambles by the end of the concert.

As the weeks passed after publication of my column more people came forward with the fruits of their research. Joan’s husband, my good friend, arbitrator Frederick Booke, informed me that the concert took place at the Harmon Gym on November 13, 1960, at the end of Richter’s American tour that began in the New York earlier in the year. Last month I appeared on a CEB panel on Evidence. At the end of the program a lawyer came up to speak to me, not about hearsay, but to inform me that her research revealed that 1960 was the year that Glenn Gould stopped giving concerts. Yes, I was not sure whether the concert had occurred in 1961 or 1960. As you shall see that small uncertainty is of no moment. Music critic and writer Gene Lees told me that he knew Gould quite well in Canada, and opined that however eccentric Gould was, he would never tear apart a piano. Lees said that Gould was not a violent person and would not commit an act of violence even against an inanimate object, particularly a piano.

But then a breakthrough occurred when I recently received an e-mail from Law Professor Paul McKaskle. He was dean for many years at University of San Francisco Law School where he still teaches a variety of courses. This includes Evidence, which he taught as a visiting professor at Boalt Hall. Now he ought to know what he is talking about.

He and his wife Ellen attended the Glenn Gould concert at the Harmon gym in 1960. But in 1960 they were not married and did not know each other. They independently remember that Gould, “full of peculiarities,” did not lay hands on the Steinway other than to touch its keys. This compelling evidence brings the case to a close. With publication of this column I will send my check in the amount of $200 in honor of Professor Paul McKaskle and his lovely wife to Public Counsel, the law firm in Los Angeles that renders pro bono legal services to the poor.

Deena called me again to see how my research was coming and I told her that I thought the evidence produced by Joan Booke, and Professor McKaskle and his wife compelled a ruling in my favor. Deena graciously agreed. She found it puzzling, however, if not disturbing, that she could be wrong about something she remembers so vividly. That approximates how I would have felt had the evidence pointed to Gould. Indeed, such a revelation can engender acute distress. If parts of our past are the product of imagination, then that can call into question who we think we are in the present.

I am convinced beyond a reasonable doubt that my decision is correct, but the outcome of this case gives me no satisfaction, other than a momentary sigh of relief. Deena’s acknowledgement that her memory had apparently failed her gave me a pang of regret. Would it have been just as well for Deena to believe as she did without my meddling? No, I know Deena, and I am convinced that she, like me, believes the pursuit of the truth is more important than being right.

And that is what judges must do all the time. They must make reasoned decisions even when they are not pleased with the outcome. All we can do is get as close to the truth as possible, and decide whether a party has met his or her burden of proof. And I am not convinced of the correctness of my opinion beyond all doubt. I am not convinced of anything beyond all doubt, including my existence. But if some additional evidence should reveal that it was not Richter after all who violated the Steinway, you can trust me to reverse myself.

Memories Are Made Of This

Before entering law school I asked a seasoned lawyer who was a family friend for advice about how to succeed in law school. “Sharpen your memory,” he advised. “It’s all about memory.” True, that, and as far as I can remember, a few other things. That was forty-seven years ago. I thought that with over four decades of practice I would have the memory thing down. I'm not so sure. At a bar function a lawyer will come up and talk about a case he or she argued in front of me, God knows when. He or she will either apologize for a gaffe, or boast about a win, and I don’t have the foggiest recollection of the case or the lawyer. I can usually get by with a smile and a nod.
When caught in a memory lapse, I usually rely on a dictum of the late Judge Jerry Pacht. “For every case name or statute I remember, I forget a line of poetry.” That usually blunts criticism of my forgetfulness.
But however one’s memory may lapse or play tricks, there are certain events in one's past that are permanently etched in one's brain. I remember vividly Dean Prosser decapitating a student sitting next to me in my torts class. Prosser’s words encased in a trick question (they were all trick questions), flew threw the air like razor sharp blades, followed by others in succession that cleanly sliced through the student’s neck so that his head teetered, then dropped silently in his lap. At the end of the class I remember him carrying his head under his arm. I leaned down and asked him how it felt. “Don’t ask,” he said. By the end of the semester he had learned to answer Prosser's questions correctly and with alacrity. I recall the Dean commenting that the student had finally screwed his head back on.
And I have vivid memories of my jury duty stint some thirteen years ago which inspired my Daily Journal column entitled, "We Will Thank and Excuse Juror No. 4" (Daily Journal March 9, 1994). That was an experience hard to forget when you are Juror No. 4. An article in the Daily Journal October 23, 2006, about lawyer Tom Rubin, who also does stand-up comedy, reminded me that Tom and I met during that time when he was also on jury duty. Tom witnessed my down cast mien as I ignominiously shuffled out of the jury box. He cracked some jokes about it, which I bet he uses in his act. I think I can be excused for not remembering the punch lines.
The foregoing incidents I remember with crystal clarity, but lately my self-confidence is shaken. Because of two recent incidents I feel like the protagonist in the movie, Memento. This has caused me to question how reliable are witnesses' memories when relating past events.
About ten years ago our traveling judge educator and good will ambassador, Los Angeles Superior Court Judge Judy Chirlin, and I taught a week-long course to Serbian Judges at a judicial institute in Prague. At a cocktail reception the Czech government gave in our honor, I met an elegant lady from one of the cultural ministries. We spent some time conversing about her work, her children and her husband also worked in government.
Several years later, I attended a concert featuring the Schulhoff String Quartet from Prague in which my close friend’s son in law, Jonas Krejci, played the cello. Who was sitting next to me?--the lady from the cultural ministry I met years earlier- - or so I thought. She was charming and elegant, just as she had been when we met in Prague. I recalled our meeting but she asserted with certainty, tempered by tact, that we had never met. She protested that she was not in Prague when I was there. "We couldn’t have met," she said, and gently squeezing my arm insisted that if we had met she would definitely have remembered me. That little white lie did nothing to ease my apprehension. Was I losing my mind? I remember her so distinctly and yet she insisted we never met. Our faces were locked in mutual smiles, only mine was through clenched teeth. My friends who witnessed the exchange were also smiling. How could I explain this was no smiling matter?
It was so frustrating. There we were, two people with different memories of something that did or did not happen, and there was no one to help resolve the issue. I suddenly knew how frustrating it must be to a witness facing a skeptical fact finder in a trial. Here I was, a witness with a story contradicted by another witness. Yet, I believe my friends who heard the exchange between us found me sincere, but not credible.
Another incident came up a few months ago which left me in a similar quandary. I write about it in the hope that some reader of this column may shed light on the facts which I now relate. Interestingly enough, the event like the preceding one, involves music.
Let’s go back to law school in Berkeley where I was honing my memory skills. The year was 1960, maybe 1961. Please dear reader, do not draw hasty inferences. The exact year is not necessary to the story. At various times during that period, one of three wonderful pianists of the 20th Century each gave concerts at the Harmon gym. The first was Rudolph Serkin. A friend of mine, Adrian Ruiz, had studied with him at the Curtis Institute. To impress my date, I had the temerity to take her back stage at intermission to meet Serkin. I gained entry by stating I had a message from Adrian Ruiz who in fact I had not seen for a few years. Serkin graciously ushered us into his makeshift dressing room and warmly shook my hand. I told him Adrian sends his regards and he thanked me for stopping by. I don’t remember my date’s name and Rudolph Serkin passed on years ago, passing the mantle to his immensely talented son Peter. I have no way of proving the back stage meeting occurred, but under most circumstances I would not have to. Most people would be inclined to accept the truth of this unremarkable story.
But the two other concerts left me wondering about a noteworthy incident that occurred at one of those concerts. The pianists were Sviatoslav Richter and Glenn Gould. I attended the two concerts with a dear friend, let's call her Dee. We have recently renewed our acquaintance and in reminiscing about the past, we have similar recollections about what happened at one of those concerts. We disagree, however, at which concert the incident occurred.
This is what happened. The pianist strode onto to the stage, held his tails behind him as he sat down at the piano bench. He contemplated the keys for a few seconds and then threw himself into a Haydn Piano Sonata. After about 10 seconds he abruptly stopped and began inspecting parts of the Steinway. The audience was silent. Not a sound could be heard other than the creak of the piano bench as the pianist shifted his weight and looked intently at the piano, for what? the source of a vibration? a squeak? Suddenly he tore from the piano a strip of wood just below the keyboard that ran the length of the keyboard. He dropped the board which hit the floor with a clatter. Not a peep from the audience. He began playing the Haydn piece again. After a few seconds he stopped and renewed his search. This time he stood up and peered into the area of the sounding board. His tails were draped over the piano bench, his tall frame bent at a 45 degree angle from his waist so that he looked like a praying mantis. He found something in the interior of the piano which he flung across the stage. A sound like an active beehive buzzed throughout the gym.
For the third time the pianist again began the Haydn piece. And again he stopped after 3 or 4 seconds. This time he slid the music stand off the top of the piano and threw the unwieldy thing which hit the floor with a jarring bang. I, along with the audience, broke into spontaneous applause. Some cheered. I was in whole hearted agreement with Dee who suggested that demolishing the piano could seriously hamper completion of the concert. But the remainder of the concert went on without incident and the pianist received a 10 minute standing ovation at the conclusion of his encore.
So which pianist tore the instrument apart? In my mind there is no question. It was Richter. Dee insists it was Gould. She appears to rely on logic to support her point. "You know how eccentric Gould is," she said with a tone of admonishment. She is right that Gould is eccentric. In fact during his concert, he sang loudly while playing and conducted himself whenever he had a free hand. But I clearly remember that, unlike Richter, he had the music in front of him. It was pasted on large pieces of cardboard stacked on the music stand. He dropped each piece of cardboard noiselessly on the floor as the concert progressed. I reminded Dee that it could not be Gould, because Richter had thrown the music stand on the floor. She found my point unconvincing.
I approach this dispute like I would a case. Of course I would like to be right, but I am more interested in getting the right answer. That is the responsibility of any good judge. Dee said I would be hard pressed to prove which one of us was right. I tried the internet and old newspaper reviews and had no success. But a few weeks ago I was relating the story to a friend, Joan Booke, and she reminded me that she had attended Berkeley in the 60's and was present at the concert where the piano was torn apart. She remembered exactly what happened, because as she pointed out, one does not forget such a unique experience. Could she be mistaken about which of the two pianists abused the Steinway? It is unlikely because she attended only one of the two concerts. I will tell you which concert Joan attended, but I must withhold that information for another column.
Although I take comfort in getting close to the truth, I yearn for something even closer than a near certainty. I would like some corroboration. If anyone reading this column has attended one of those concerts of which I speak, and can provide information leading to the identity of the irate pianist, please contact me at your earliest convenience. He or she will receive honorable mention in a future column, and I will make a contribution to legal aid.
There is comfort in getting close to the truth, what we strive for in our trials. In the meantime, I have been relaxing and listening to Dick Hyman's rendition of a wonderful song by the late Eubie Blake. It's called "Memories of You."

Education for Judges- A Flu Shot

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

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

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

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

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

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

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

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

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

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

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

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

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

Going to the Dogs

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Governor Does the Right Thing

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

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

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

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

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

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

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

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

“Give me a break.”

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

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

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

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

“To the decisions and rulings the judge makes.”

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

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

“You sure they were Republicans?”

“Please.”

“O.K. but that was an exception.”

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

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

“And what is your party?”

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

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

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

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

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

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

“Most of me didn’t know that either.”

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

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

“You irritate me no end.”

“Got something against Democracy?”

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

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

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

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

A Catty Legal Problem

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dreams of Judging Can be a Nightmare

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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