PLEASE, NO SURPRISES

Courts interpret the law. It is expected, or at least hoped, that they do so in a way that provides the public, from which come litigants and their counsel, a reasonable degree of predictability, if not certainty. From this dictum one would expect that surprise would be an unwelcome guest whose brash presence could be embarrassing to counsel advising their clients. But to quote Heraclitus, the Greek philosopher, which I do, with annoying regularity, “Northing endures but change.” And because the law is not static and immutable, and therefore subject to Heraclitus’ maxim, it should come as no surprise that judicial decisions are often surprising. But what is an unwelcome surprise decision to some may be a decision hoped for, if not expected, to others. “Surprise,” like obscenity, is in the eye of the beholder.

In his confirmation hearing, Chief Justice Roberts saw his role as a referee calling “balls and strikes.” But that assumes that laws, like the rules of baseball, are fixed, and judges merely decide whether the litigants’ conduct, like a player's swing at bat, is a ball or a strike.

Who would have believed that after 100 years of precedent, the United States Supreme Court would have ruled in Citizens United v. Federal Election Commission (2009) 130 S.Ct. 876 that corporations are the same as individuals for First Amendment purposes. Or to some, assessing the court’s proclivities, the ruling was no surprise.

In any circumstance, I dislike being on the receiving end of a surprise. I dread the thought of ever being the “victim” of a surprise birthday party. I have seen the hapless birthday person walk into his home with a bag of groceries, and the expectation of a quiet evening reading Marcus Aurelius’ "Meditations," fumble for the light switch, then nearly have a heart attack when 75 screaming voices yell, “Surprise!!”

I do not relish helping plan a surprise party, but on occasion I am impressed for duty. I recall helping plan a surprise party for a friend who loved Orson Welles’ masterpiece, "Citizen Kane." He could recite all the lines from the movie by heart. As he unsuspectingly walked into his darkened living room, I induced all the party goers to shout, “Rosebud.” As we revived him, he was too startled to even register what we had yelled.

I have been on the receiving end of surprises now and then during my 35 years on the bench. I am not talking about the inevitable reversals and the occasional affirmances from higher courts. When I was “elevated” (sounds like a religious rite) from the Municipal to the Superior Court, a public defender, and good friend, Linda Schwartz planned a courtroom surprise for me. I took the bench for the afternoon calendar and called a case the clerk had put in front of me. A young woman, dressed in tights, came before the bench and sang and danced to music on her tape recorder. The original lyrics recounted my adventures as “King” of the traffic court and “Dispo” artist in the criminal misdemeanor calendar court. Everyone in the courtroom applauded. I held her in contempt.

Shortly thereafter I was invited to a party given by two public defenders. One of them, let’s call her S., told me the party was a surprise, but not a surprise birthday party. The surprise was for the guests, because this party would be her surprise wedding, a wedding that she asked me to perform. She extracted a promise from me that I not tell anyone about the surprise. I wasn’t sure if this included the groom. I was relieved when during the ceremony he responded, “I do,” to the all-important question I put to him.

This wedding was truly a surprise to all the guests, including the parents of the bride and groom who the couple thoughtfully invited. At the appropriate time, I called the guests into the backyard and quieted them down. Pandemonium broke out when they realized the ceremony I was performing was not a skit, but the real thing. The congratulations and hugging lasted the rest of the night. The couple asked if I enjoyed participating in this bit of deception. I said did, but asked myself, “What about wedding presents?”

I also performed a surprise wedding for a couple I knew who were in “couples group therapy.” I performed the ceremony at the close of one of their sessions. The weekly sessions were conducted on Tuesday evenings by a married couple, both of whom were psychiatrists. The group consisted of about five or six couples who had been attending these sessions for a few years. They met in the therapists’ office in a nondescript building on Wilshire Blvd. in Santa Monica. The couple for whom I was to perform the wedding ceremony asked me to “drop in” at 9:30 p.m. at the close of the session.

I parked in front of the building at 9:30 sharp. The prospective groom, let’s call him D., was waiting for me in front of the building. He was the only person in sight. It was eerie seeing him there, his shirt sleeves folded back above his wrists, his tie loosened below his open collar, a lone figure, bathed in a shaft of light coming from the empty lobby. I had an uneasy feeling as I approached him. It was like walking into an Edward Hopper painting.

He greeted me and we took the elevator up to the 10th floor. “We are having a little celebration,” he said. “It’s Marty’s birthday.”

“It’s not a surprise party is it?” I said, trying to be light hearted.

“No,” said D. “Only our marriage.”

We walked a short distance down the empty corridor and D. opened a door. I walked into a brightly lit room that was furnished like a comfortable den, with couches and easy chairs. The couples were talking and laughing, drinking wine and munching on birthday cake. They looked up from their reverie and suddenly the room turned completely silent. I was apparently the first outsider ever to breach this inner sanctum in which I imagined the most intimate practices, inner feelings, fantasies, and provocative stories were revealed.

D. broke the ice. “This is Art,” he said, and walked to the other side of the room. There was an empty chair nearby. I sat down. They were all staring at me, not saying a word. An attractive blonde woman with a cutting knife in her hand finally said warily, “Art, care for a piece of cake?” “That would be nice,” I replied. She cut me a piece, carefully placed it on a plate and handed it to me. “It’s Marty’s birthday,” she said. “Thanks,” I said. “And Happy Birthday to Marty.” Of course, I didn’t know which one was Marty. The conversation among the couples resumed, but was now more like a murmur. I munched on my cake and even accepted a glass of wine.

A man came over to me. I think it was Marty. He was about to ask me a question, when I noticed D. give me a high sign. I put my cake down and got up from my seat and said, “Excuse me.” I walked to the front of the room where D. and S., his soon-to-be-bride, were now standing. All eyes were on us and everyone stopped eating and drinking. I welcomed everyone there, enjoying that brief moment of rhetorical irony. I then began the wedding ceremony. They caught on, and the place erupted in cheers, tears, and shouts of joy. The ceremony over, I took my leave. They gave me an extra piece of cake to take home.

Both of these surprise weddings occurred many years ago. I am pleased to inform you that my wife Barbara and I are good friends of the surprise wedding couples, and that both couples are still happily married.

But despite the happy outcomes of the surprise weddings I just related, surprise Supreme Court decisions can be unnerving. Reversals from a higher court can cause a lower court judge (that includes me) to say or think, “I knew it.” No matter, it still may be a surprise. Affirmances should not be a surprise, but merely a validation that you on the lower court got it right. But still, the lack of certainty brings an element of surprise to decisions rendered by higher courts.

But a big surprise decision can be disquieting. It causes one to wonder what happens next. Getting back to the Citizens United case for example: If corporations have the same First Amendment rights as people, perhaps next corporations will be able to sue for loss of consortium. Under the rationale of Citizens United, this should come as no surprise. Loss of the capacity to do what some corporations excel in just might be compensable.

Cutting It Short

I was working out with my trainer, Shane, and he told me about a job opportunity for which I was well suited. Please no comments about having a trainer. When I was a kid, we didn’t have trainers, life coaches, Pilates instructors, wardrobe consultants, nutritionists, party planners, and the cadre of “professionals” we require to manage our lives.

But that was then. Now, I have concocted a rationale for working with a trainer. It “boosts” my energy level and sharpens my mind so that I can track attorneys’ complex arguments. This in turn enables me and my staff to craft the important decisions that are a part of the weave and nap that comprise the law’s fabric of our great state, the hallmark of a civilized society. You don’t buy it? Then how about this? Working with a trainer builds core strength, keeps my immune system robust, and my bones dense and strong. Buy that? You acknowledge that reason is more plausible but you are still unconvinced?

O.K. I will drop the pretense. The true reason stems from my affinity for dwarfs. This is because I am short, chronically short. I have been this way all my life, and now, with advancing age, I am getting shorter. Who knows, in another few years, I could disappear. I was hoping that maybe Shane could stretch me out so that I don’t become microscopic. But the job opportunity he offered me gives me pause. A friend of his made a movie and, to promote it, advertised for a dwarf to dress in a costume and shoot T-shirts out of a gun. He tells me it pays well. I told him I would think about it. It might detract from the dignity of the judiciary.

When I was a child, about four years old, we lived on the top floor of a hotel on the beach in Venice, California. But, even then, the characters I remember in my life could have come from Venice, Italy, straight out of a Fellini movie. This was during World War II. They say that people born during that time are on average much shorter than people born today…after they grow up.

The hotel is still there, and on Thursday mornings, when I bike down to Venice with a group of friends, I point it out. They are tired of hearing about it, but not tired of hearing about what life was like then for a four year old. You could not go on the beach at night, and you had to draw the window shades that faced the ocean. If even a sliver of light shone through the window, there would be a knock on your door and a volunteer air raid warden would tell you to pull your shade all the way down. Japanese submarines had fired upon an oil refinery in Goleta.

Our hotel was on what we called “the front.” It was like the boardwalk on Coney Island, only there were no boards. It was made of cement and was a place for people to walk and for “trams” to carry passengers from one place to another. It extended for several miles from Santa Monica to Venice. There were piers in Santa Monica. One was a fishing pier that extended out into a boat harbor that is no longer there. Further south was an amusement pier in Ocean Park, the forerunner to "POP" built in the 1960’s. Next to that pier was a short pier called Lick Pier on which was the Aragon Ballroom where the Lawrence Welk band played relentlessly. A few miles south of that pier was Venice Pier at the base of which was what we then called a motion picture theater. It was owned by a husband and wife, both of whom were dwarfs. I regret to say that the pier, the motion picture theater, and the dwarfs are gone.

Husband and wife would walk along the “front” in the morning on their way to their theater which they opened around noon. Every morning they would stop in front of our hotel to rest awhile on one of the benches that lined the “front.” I would watch them climb up on the bench where they would sit side by side holding hands. This image is seared into my brain and it gives me comfort that I can call it to mind at will.

So I have this affinity with what is short. I cheer for the Lilliputians. One of my favorite books is “The Dwarf” by Nobel Prize winner, Par Lagerkvist. True, that dwarf was evil incarnate. But I view him as a metaphor for evil more than a real live person. One of my favorite actors was Billy Barty. He founded an organization championing the cause of what he described as the “Little People,” with the emphasis on “people.” I did have one unfortunate experience with a dwarf when I was about 10 years old. He was dressed in a Donald Duck costume and I pulled on his bill. He took off his head and bawled me out. Scared the hell out of me. I’m over it now.

Neither my wife, who is even shorter than I, nor I are prejudiced against tall people. Our best friends are tall. They have to look down at us, but they assure us they look up to us figuratively. I try not to overcompensate in my profession. I treat tall lawyers well. My wife and I are big basketball fans. The important thing is to think tall.

Short, by itself, is neither good nor bad, but in some contexts it can be horrendous. California’s current budget shortfall, for example, has shortened some tempers in the judiciary. But civility has not waned in two judicial leaders, both of whom are tall in stature, intellect and integrity. One can look up to both of them literally and figuratively.

We have all heard and read about Los Angeles Superior Court Presiding Judge Tim McCoy’s concerns about the judiciary’s budget deficits and his predictions about courtroom closures and substantial employee layoffs. He takes issue with Chief George’s allocation of a limited judicial budget. In particular, McCoy would like to see funds currently allocated for courtroom construction temporarily diverted to the Los Angeles Superior Court and funds for the computerized California Case Management System put on hold.

The Chief and his staff point out that the deplorable condition of many courthouses throughout the state renders them unusable. Construction and repairs give us safe courthouses and provide much-needed jobs. And the costs for the case management system are on a “pay-as-you-go” basis. Implementation of the program statewide has been deferred beyond 2013.

Many parties affected by budget cuts have legitimate concerns. I am sympathetic to Judge McCoy’s worries, but the alarms he raises publicly may be, at this point, more problematic than productive. In an editorial on February 10, 2010, the Los Angeles Times acknowledges that McCoy and the Chief are the “most polite of disputants,” but cautions that “ angry judges and turf-defending court officials,” backing either George or McCoy, threaten “to make all of them look more adolescent than judicial.” The editorial points out that "the size of the budget problem is not yet clear, and won’t be before the state’s May budget revision.”

We in the judiciary may have differing views on a variety of issues, but we have not been fractious like many of our legislative colleagues of recent times. As the Times editorial points out, the courts do not have a strong public constituency, and “[a] court system at war with itself is ill-equipped to make its best case to the Legislature for sufficient funding and in the court of public opinion for respect and continued independence.”

I would like to see Judge McCoy, who represents the largest trial court in the country, sit down with the Chief, and representatives of the Administrative Office of the Courts, so that each side could understand and fairly consider facts that support the other’s point of view. That is what judges are trained to do.

Attorney Tim Tosta might have a good approach for such a meeting. He survived what had been diagnosed as incurable cancer. This life-threatening experience changed his life and his approach to living, solving problems, and practicing law. In a column that appeared in the Daily Journal on January 11, 2010, he described his efforts trying to help a hospice patient. He completely misinterpreted what the struggling patient was trying to tell him. He finally realized his premise was faulty and then was able to provide the comfort the dying patient was asking for.

The approach he used with the patient could well be used by all of us dealing with any problem, including the budget crises. It is easy to make mistakes about what we observe. Tosta suggests that we not “forego the opportunity to test” what we think is the “truth.” That gives us the opportunity "to create solutions more consistent with [one’s] observations and experience.” Tosta warns that “regrettably we are often so filled with reactive behavior that we fail to make important inquiries.”

The budget shortfall requires that we adopt a view to what is best for the state overall. The Chief has fought tirelessly on behalf of the judiciary throughout the state without showing favoritism for any particular court. It is not an easy balancing act, but cuts have to be made. The budget shortfall is critical, but it is also fluid. Perhaps a solution could be forged out of such a meeting. The sky above may be cloudy, threatening a menacing storm, but that does not mean it is falling.

However this turns out, one thing is certain: budget shortfalls require sacrifice. I, along with most judges in the state, have taken a voluntary cut in pay. That makes me short both in cash and height. I thought again about that job shooting T-shirts out of a gun to supplement my paycheck. How could it bring ridicule to the judiciary when I will be hidden from view? But I used Tosta’s approach to the problem and decided against it. Some snotty little kid might mess with my costume, and I just might take of my head and give him a piece of my mind.

My Courtroom Is Not Dark

476-2151. That is my old phone number. The phone company disconnected it when I moved to a new address 39 years ago just as we began establishing area codes. I do not always remember what I did a few days ago. Still, it is not extraordinary that I remember my phone number from decades ago. The phone, then, as today, was a vital link to others. And, as today, we “gave” our numbers to special people, but there were no cell phones to store numbers. Those special phone numbers from the past stay imbedded in memory because they were “dialed” so often and because they kept us in touch with people who were important in our lives. I still remember some of my friends’ phone numbers I “dialed” 50 years ago.

But a phone number was merely the code that made the connection with others possible. Many of the conversations—the arguments, the expressions of love, anger, compassion and sympathy, the exchange of ideas, profound and commonplace—linger in our memories because they are significant parts of the unique story of our lives. A transcript of some may be prosaic in isolation and seemingly beyond recall. But a momentous event in the present can bring them to the surface where they can be seen with striking clarity for their special significance.

One such phone call from several years back recently was called to my mind. It was from my friend, Federal District Court Judge Florence Cooper. She said, “Art, thanks for introducing me. We had a wonderful conversation.” This unremarkable short call was not about a conversation between Judge Cooper and me, but I doubt I will ever forget it.

A little history will explain. Approximately 20 years ago, I, along with others, formed the West Los Angeles Inns of Court. I recruited several lawyers and judges, including then Superior Court Judge Ronald Schoenberg. He joined with his son, Randy, a recently admitted lawyer. Years later Randy assumed the role of David when he challenged Goliath, the Austrian government, in a celebrated lawsuit over ownership of a group of paintings by Gustav Klimt. The Nazis had stolen the pieces from an Austrian Jewish family. After the war, the paintings came into the possession of the Austrian government.

One painting, in particular, the portrait entitled Adele Bloch-Bauer I, was described by Christopher Knight of the Los Angeles Times as the "singular 1907 tour de force, … among the greatest early Modern paintings now in the U.S…. [I]t ranks as a destination work—the kind one travels just to see—comparable to Pablo Picasso's Les Demoiselles d'Avignon at New York's Museum of Modern Art ...."

Randy represented Maria Altmann, the niece of Adele Bloch-Bauer. Ms. Altmann fought to have the Klimt paintings restored to her, the last surviving family member. Her attempts to obtain redress in Austrian courts were not successful. But Randy took another tack. He filed suit for Ms. Altmann, when she was in her late 80's, under the Foreign Sovereign Immunities Act in the United States District Court, Judge Florence Marie Cooper Presiding.

Did Ms. Altmann have standing to sue the Austrian government? Judge Cooper said she did. So did the United States Supreme Court.

Owing to Ms. Altmann’s advancing age and the passage of years over which the appeals would stretch, whatever the outcome, Randy and Ms. Altmann opted for binding arbitration before three arbitrators in Germany. The decision was unanimous in Ms. Altmann's favor. The five Klimt paintings, including the stunning portrait of Adele Bloch-Bauer I, were returned to the rightful owner.

I attended a special showing of the paintings at the Los Angeles County Museum of Art where Randy introduced me to Ms. Altmann. As I was congratulating Ms. Altmann, I noticed out of the corner of my eye Judge Cooper entering the gallery. I grabbed hold of Judge Cooper’s arm and brought her over to Ms. Altmann. “And here’s the judge who made it all possible,” I said. They hugged and sat down at a table and became engaged in animated conversation like two friends who have known each other for years. I still see so clearly the two of them, talking and laughing, two people of great courage and character, who in quite different ways demonstrated how the courts can be a potent force for justice.

It is so difficult for many of us accept the terrible news that Judge Cooper died on January 15, 2010. She was a friend whose warmth, kindness, humor and brilliance touched everyone she knew. We had dinner many times throughout the years with a small group of friends, all of whom shared a disdain for formal clubs. We formed our own anti‑club dinner club, dubbed “CALJIC I" by its president, criminal defense attorney Bob Schwartz. Bob takes pride in his inability ever to establish order at our meetings. Our bylaws prevent me from disclosing or even summarizing our conversations. No matter, the bylaws were not written and the conversations were hard to follow with all the interruptions and laughter.

Florence Cooper proved that an academic pedigree is not an essential ingredient to be a great judge. She graduated top of her class at the Beverly Rubens Law School, now called the Whittier Law School. No doubt, Beverly Rubens was one great law professor. And Florence and one of her best friends and classmates, Miriam Vogel, who graduated magna cum laude, were stunningly brilliant students. Miriam, now a leading appellate practitioner, became one of our state’s most respected justices on the California Court of Appeal. To hear Miriam recount their days in law school, studying for the bar, pursuing their careers and raising their families is both hilarious and touching.
Through example, Judge Cooper made us better at what we do. She showed judges what it is to be the best possible jurist. One could not help take notice. Ninth Circuit Court of Appeals Judge Arthur Alarcon, for whom she clerked when she graduated from law school, described her as one of the finest jurists in our country. He was so impressed with her work in his chambers that he acknowledged that she had become part of his brain. And that is one impressive brain. Exceptional people like Judge Cooper stay with you forever.

A typical example of how other judges viewed Judge Cooper is found in these words written by California Court of Appeal Justice Elizabeth Baron (Ret.). Upon learning of Judge Cooper’s death, she wrote so eloquently: "I have known Florence Marie Cooper for 30 years and, to me, she was the quintessential judge; the purest and most perfect example of what it means to be a judge. From holocaust victims to whales to government malfeasance, she was committed to overseeing a process that would render an outcome based on a fair and impartial adjudication of each case. Her crushing caseload never prevented her from reading every document presented to her or analyzing each issue in depth. She provided the foundational and emotional support for her family. She was loyal and true to her friends. She sang like an angel, played the piano and knit sweaters for us. Her death leaves a gigantic hole in the fabric of our legal world and in my life."
Judge Florence Marie Cooper remains with us through the legacy she leaves. With apologies to Mary Frye, who after the death of a dear friend is reputed to have written a moving poem in 1932, entitled "Do Not Stand at My Grave and Weep," I close with a poem inspired by Ms. Frye and Judge Cooper.

My Courtroom is Not Dark

My courtroom is not dark, the door opens wide,
I have not gone, I still preside.
I am the judge, the judge who is fair,
I am the judge, the judge who cares.
I am the judge before whom you rise,
Yet, the judge who is humble, who strives to be wise.
I am the judge intent and kind,
The judge not afraid to change her mind.

I am the judge who loves the law,
Who knows the record, sees an argument’s flaw.
I am the judge who does not glower,
The judge who uses, not abuses her power.
I am the judge all can trust,
The judge who rules as she can, and rules as she must
My courtroom is not dark, the door opens wide,
I have not gone, I still preside.

A New Year's Resolution

When I was a kid, rarely did we see “homeless” people wandering the streets, and never did we see someone putting cardboard boxes together to make a shelter to sleep in the park. The occasional vagrant begging for a handout was called “a bum” or “a drunk.” I recall when I was a college student, a man, unshaven and wearing dirty clothes, approached a group of us walking down the street and asked for money. One of my friends told him to get a job. The man swore at us as we walked away. That scene, fifty years ago, still haunts me. I wasn’t sure how to respond. Jobs were much more available then, but this particular needy person may not have been capable of getting a job, and, perhaps, had we given him money, he might have spent it on booze. But these rationalizations give me small comfort.

Now, fifty years later, on occasion I either give a few dollars to a homeless person or order him or her a meal. Notice, I said “on occasion.” I am not sure why sometimes I do and sometimes I don’t. About twenty-five years ago, when I was newly appointed to the Court of Appeal, a group of my colleagues and I were walking to lunch on Wilshire Blvd. A pathetic looking homeless person standing by the curb asked us in almost a whisper if we could spare some change. I doubt my colleagues heard him, but I did. I walked over and gave him some change.

One of the justices gently chided me for giving him money that he was sure would be spent on alcohol. He suggested good naturedly that I was a typical liberal. I responded that even alcoholics have to eat. A psychiatrist friend of mine scolded me for giving money to a homeless person. “He is an alcoholic. He will just spend the money on booze.”

Maybe they are right. Perhaps it is better to donate time and money to a homeless shelter than to offer random individuals sporadic palliatives. Yet, it is hard to ignore the lady with the dog at the freeway entrance at 11:00 p.m. or the elderly couple huddled in the front alcove of a closed store on a cold evening.

This dilemma spawns so many questions. Was I a liberal when I gave money, but not a liberal when I didn’t? Is there such a thing as a sometimes liberal? The term “liberal” was effectively used in George W. Bush’s campaign for President as a contemptible trait found in people who were not worthy to govern.

But what is a liberal? Someone who supports change for the good of everyone in society? Someone who supports justice for everyone? Do not conservatives aspire to the same goals? I have heard conservatives complain that liberals theorize about concepts, but can be cranks who tyrannize their spouses, offspring and friends. And I have heard liberals complain that some of their conservative friends are kind and generous on a personal level, but have no compassion or concern about specific groups of people, like, for instance, the homeless or the uninsured.

Whatever those terms connote, it looks like neither conservatives nor liberals have exclusive rights to the moral high ground. David Brooks, who some consider a conservative columnist, wrote a month or two ago in the New York Times about notions of morality. Brooks notes that Princeton Professor Kwame Anthony Appiah, in his book, Experiments in Ethics, posits that decades of experiments have led psychologists to question traditional philosophical notions of morality. We act in moral ways sometimes, but not always. We can be generous and courageous in some situations, and downright despicable in others. And this goes for liberals and conservatives.

Appiah acknowledges that there may be a seeming conflict between the philosophical conception of a consistent moral character and the results of scientific experimentation that show otherwise. But Appiah contends that moral philosophy and scientific empiricism are compatible and can have a “conversation.” The recent debate over health care and other public issues leads me to believe a “conversation” is not taking place between liberals and conservatives.

And this brings me to two unabashed liberals, both friends of mine who passed away within one day of each other. I bet that everyone who knew these two remarkable persons would agree that they both embodied a consistent moral persona that I am certain scientific experimentation would have verified.

I speak of activist Alice McGrath and civil rights lawyer Bob Berke. I was fortunate to have spent time with both of them, just days before their passing.

Alice became famous for her fortitude and commitment to justice as Director of the Sleepy Lagoon Defense Committee. The play, Zoot Suit, by Luis Valdez, tells the dramatic story of this famous trial in which twelve Mexican-American men were tried for murder in 1940. The convictions were reversed in People v. Zammora, 66 Cal.App.2d 166 (1944). The trial was infected with racism and hostility towards the defendants. The appellate court found the evidence insufficient to show defendants conspired to commit murder (id. at pp. 201-202) and chastised the trial judge for disparaging remarks he made about defense counsel in the jury's presence (id. at p. 215).

Alice, diminutive, stunningly beautiful, possessing a will of iron, but always with a twinkle in her eye, fought for social justice all her life. In her 80's, she developed a legal aid program for poor people in Ventura and led numerous study groups to Nicaragua and Cuba. In 1991, Alice accompanied the justices of my division of the Court of Appeal and others from various disciplines on such a trip to Cuba.

We visited the courts and law schools. Alice promoted and encouraged frank discussions with judges and government officials about our differences. Alice and I had many lunches together during which we engaged in animated discussions about literature, politics and religion. And then I lost this great friend. She died November 27th at the age of 92.

Bob Berke was one of the great civil rights lawyers of our day. An indefatigable worker, he refused to give up. I first met him when he was a public defender in my trial court in the 1970's. Like Alice, his commitment to justice was built into his DNA. Bob is credited with helping establish case law allowing criminally charged defendants discovery procedures into police misconduct. He was victorious in public interest lawsuits and secured reversals for defendants whose convictions were based on suspect jailhouse informant testimony. He was handsome, vital, warm and engaging. Again, like Alice, he was someone you could not help but like. He and I had lively discussions about the law, the courts and politics. And a few weeks after our last discussion, he died quite suddenly on November 28th from a form of encephalitis at the untimely age of 61.

The deaths of these two vital individuals take me back to David Brooks' insightful observations. At the end of his column, he remarks that Spike Jonze's film, Where the Wild Things Are, illustrates how the difference between the philosophical and psychological may find resolution. Max, the protagonist, quells the wild impulses within him, but not through the force of reason and self-analysis. These tools are often no match for impulses and instincts that come from evolution, culture and upbringing. Instead, weakness, fear and selfishness are subdued when Max is focused on building a fort or being involved with someone else. Brooks theorizes that "it is possible to achieve momentary harmony through creative work."

And that explains how Alice McGrath and Bob Berke lived their lives. Their moral compass never lost its course because they directed their dissatisfaction with injustice through action, not ranting, not verbal attacks, but doing. They took time to consider other points of view and responded to their adversaries with civility--a good model for all of us, for liberals and conservatives alike. I would like to see everyone adopt this approach as a New Year's resolution. By "everyone," I include politicians and judges everywhere, even in California. And when you ponder what to do about a homeless person in distress, you will make the right decision.

ROBERTO

When I left court the day before Thanksgiving, I said goodbye to my Cuban friend, Roberto, our security guard. We hugged and wished each other a happy Thanksgiving.

The day after Thanksgiving, when I arrived with friends at the restaurant at which I had made dinner reservations, the maitre d asked me in a friendly tone, “Who are you?” I am sure my immediate response was off-putting. I said, “I’m nobody! Who are you? Are you nobody, too?” I quickly realized this was a good way to lose the dinner reservation, so I quickly apologized and blamed my response on Emily Dickinson. He did not seem upset and asked if she would be added to our party. I told him that she was a 19th Century American poet who wrote a poem entitled “I’m Nobody.” I then recited it for him:

I'm nobody! Who are you?
Are you nobody, too?
Then there's a pair of us — don't tell!
They'd banish us, you know.

How dreary to be somebody!
How public, like a frog
To tell your name the livelong day
To an admiring bog!

He liked the poem and asked again if Emily would be joining us. I told him I did not think she would be able to join us, but promised to send him a copy of the poem. He sat us at a good table.

You may be wondering what this poem has to do with Thanksgiving and Roberto. The simple answer is: everything.

This poem speaks to me, not because I think I’m nobody. I mean, I do have some body. Wait, that did not come out right. I mean, I am some body, I mean somebody. Still does not sound right‑‑either way.

My point is simply that at times I realize I am nobody special. Sorry, I know this is getting tiresome, but it still does not sound right. It reminds me of the term we learned in law school, “negative pregnant.” It implies that most of the time I feel like I am somebody special, and only now and then, when I acknowledge I am nobody, do I feel kinship with Emily. But that is not the case at all.

I have concluded that Ms. Dickinson’s seemingly self-deprecating pronouncement about who she is, “nobody,” does not stem from one or more public incidents in her life. For example, had she, like me and my colleagues, experienced a “reversal” by the United States Supreme Court or even a few by the California Supreme Court, she would not conclude she was “nobody.” She might wonder how the High Court justices could be so wrong, or take comfort that the United States Supreme Court’s decision in Nollan v. California Coastal Commission (1987) 483 U.S. 825 was five-to-four.

And had the Supreme Court “affirmed,” I believe Ms. Dickinson might conclude, as have I, that the affirming justices would feel as much admiration for me or her as would a bog for a frog. I think Ms. Dickinson’s “nobody” paradoxically is the unique special “somebody” who she, who we, who you, truly are, and not the public “you” who might have a title or apparent indicia of success. Ironically, I so admire Ms. Dickinson, that, for me, she is both somebody and nobody.

And all this relates to Thanksgiving and Roberto. He and I are about the same age. I had been to Cuba in the early 1990’s, and I wanted to know how he had survived the revolution. I prevailed upon the reticent Roberto to tell me about his life. Over several months, he related to me a compelling story that taught me what Emily Dickinson was talking about.

In 1959, Roberto was a young man in his early 20’s, living with his parents in Cuba. He was not political, but had the misfortune at that time to be a cadet in the Cuban Air Force Academy when Castro’s revolution took place. A few days before the Bay of Pigs invasion, he and thousands of others were arrested and taken to a castle near the center of the city. He survived each day on water and one meal of beans and rice. The weeks dragged on, but, every few days, some detainees' names were called over a loud speaker. For whatever reason, these detainees were immediately and unceremoniously released and told to go home. It was apparent that most detainees had no idea why they had been arrested or why they were being released. Roberto speculated that the authorities did not know what they were doing, but thought that, because he had been in the Air Force Academy, he had little chance of being released.

After two months in detention, Roberto got a lucky break. The authorities called the name of a friend of his that he knew had already been released weeks earlier. He answered, “Here,” and they let him go.

Roberto hid at his parents’ house for a few days, and then left with a friend who arranged passage for them to a small island off Cuba. He spent several months there and formulated a plan with several families to put together a small flotilla of boats to head for the United States.

The departure date had to be moved forward when they learned that Castro's brother was coming to the island the next day. They were not prepared to leave, but had no choice. Within a few hours, they tied ten boats to one another and headed out to sea in the middle of the night. After a day or two, a sudden storm tore the boats from one another. They were adrift with enough provisions to last only a few days.

For nine days they floated aimlessly at sea with little food or water. During that time a young woman on board gave birth to a baby boy who miraculously survived. Just when they were losing all hope, a ship from the Cayman Islands appeared on the horizon and rescued them. The U.S. Coast Guard picked them up and restored them to good health. Our government granted him asylum. It was heartening to hear him tell how kind and supportive the Coast Guard officials were to the "boat people."

Roberto lived for several months in what came to be called "Little Cuba" in Miami. He eventually made his way to California where he and his friends lived in a rooming house on Vine Street across from the American Federation of Musicians, the musician’s union. I then lived in Hollywood with my parents, just a few miles from the musician’s union. I remember the opening of its new building in 1950 when my parents took me to hear a concert at the union hall. Ferde Grofé conducted the orchestra in his composition, “Grand Canyon Suite.”

I think that was the time I decided it would be “cool” to be a musician. In 1960, when Roberto found a place to stay across from the union hall, I was agonizing over whether I should go to law school or be a jazz pianist and starve to death. I often drove past the union hall and dreamed of hanging out with the other “cats” and playing in jam sessions. In fact, at that very time, Roberto, on the front steps of his rooming house, was listening to the music wafting across Vine Street.

Roberto worked hard, learned English, became a skilled machinist, and was able to bring his parents and sister to the United States. To keep busy, Roberto now works at the court.

While Roberto struggled to learn English, I struggled to answer the impossible questions my law professors put to me. While Roberto was looking for work, my parents plunked down the astronomical sum of around $200 for admission to law school at the University of California. While I wrestled with a workable notion of freedom, having witnessed the stultifying conformity and political witch hunts in this country during the 1950’s, and then experienced the tumultuous excesses of the 1960’s, Roberto had to flee the stifling repression of Castro’s dictatorship. Roberto recently survived another challenge, his battle with cancer.

This brings home to me that throughout our lives, in heat and frost and seemingly at random, we come upon paths taken and not taken. Luck and sometimes a glass of milk and a cookie play a significant role in the choices we make, whether to take this path or that one. But, as Louie Pasteur said to me one night over coffee, “Luck favors the prepared mind.”

A skilled and successful lawyer argued a case in my court a few months ago. In the middle of the argument, he turned into a Gatling machine gun and began asking me questions in rapid succession. I automatically began thinking of answers until it dawned on me something was amiss. “Wait a second,” I said. Something is wrong here…. Give me a minute…. I’ve got it. I ask the questions.” Everyone laughed. For the moment, I was the somebody who asks the questions. But I knew I was nobody. And I suspect that the sharp-witted lawyer knew he too was nobody.

At this past Thanksgiving, and at unexpected times throughout the year, I give thanks that I am nobody. And I give thanks that I am friends with Roberto, who is so special because he is somebody and nobody.

CATS AND CORPORATIONS

"A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law…. Its immortality no more confers on it political power, or a political character, than immortality would confer such power or character on a natural person.” So wrote Chief Justice John Marshall in Trustees of Dartmouth College v. Woodward (1819) 17 U.S. 518, 636.
John Marshall’s sentiments may have been on Justice Sonia Sotomayor’s mind in her debut appearance at oral argument at the U.S. Supreme Court in the case, Citizens United v. Federal Election Commission. The issue before the court was whether the campaign finance law limiting corporate donations violated a corporation’s First Amendment rights. Judges "created corporations as persons, gave birth to corporations as persons," she said. "There could be an argument made that that was the court's error to start with ... [imbuing] a creature of state law with human characteristics."
And Justice Sotomayor may have found a like mind in Justice Ruth Bader Ginsburg who said, "A corporation, after all, is not endowed by its creator with inalienable rights."
Thought-provoking comments like these do not necessarily indicate how a justice will vote on an issue, but the justices raise a good point. The attributes corporations have as persons are created by statute. Corporations can own property and sue and be sued, but they can’t sue for emotional distress or loss of consortium. Why? Because they really are not persons. They are simply substitutes for persons, sometimes.
And this got me thinking about my, I mean our, two cats. Some people can’t stand seeing other people, particularly those without children, fawn over animals. They contemptuously refer to these animals as “children substitutes.”
My wife, Barbara, rejects the notion of cats as child substitutes. “They are simply cats.” My response: “So why do we fret about them and attend to all their needs?”
I think it boils down to this. Just as a corporation may be treated like a person for some purposes, so may a cat be treated like a child for some purposes. But we all know that a corporation is not really a person, and a cat it is not really a child. I mean you don’t burp a kitten. You may play ball with it, but you don’t take it to a ball game.
And, if you are a little crazy, you may have a birthday party for it when it is one year old, which translates into around seven human years. Then you can go crazy deciding who to invite‑‑ Other neighborhood cats? A few small dogs? An eccentric neighbor or two? And what about presents?
Even the nitwits who throw parties for their pets figure out the whole thing is a farce when they wind up buying all the presents. (Parenthetic tip: Cats hate practical presents that benefit their owners. Collars and kitty litter are out. Catnip or a toy to moisten in their spit is preferable.)
Recently a journalist with apparently nothing to write about sought to interview professionals about the difficulty of raising children and attending to their professions. Somehow she got my name. The journalist thought a story about a presiding justice and his children would be of great interest to the reading public. She called me at a time when I was feeling particularly close to my cats, I mean, our cats. Barbara has often reminded me that they are “our” cats, not mine alone. That is true. In fact, I think she is their favorite.
I agreed to the interview and suggested to Barbara that, because the cats are “ours,” she should participate. She looked at me in what I would charitably call an expression of disbelief, and declined. She rejected out of hand my cat-corporation comparison. I decided to be interviewed alone, but assured Barbara that I would refer to the cats as “our” children. She said that would not be necessary and extracted a promise that under no circumstances would I mention her name. Ladies and Gentlemen of my readership, you are instructed to disregard the name “Barbara,” and not to consider it in your discussions, deliberations, evaluations or thoughts about this column.
The interview took place at a posh restaurant on the exclusive “Westside” of Los Angles. The interview began over an endive salad with blue cheese crumbles, walnuts, grapefruit slices and a subtle vinaigrette dressing. It was concluded before dessert. What follows is my best recollection of the interview:
Journalist- So how many children do you have?
Me- Two.
Journalist- How old are they?
Me- (a pause‑‑not to be confused with paws‑‑sorry, couldn't help that) Around 20.
Journalist- Around 20?
Me- You get busy; you lose track. Let’s just say 20.
Journalist- (a quizzical look on her face) O.K…. Around 20. (a pause) What is the date of their birth?
Me- I can’t really say. We got them a few months after they were born.
Journalist- (brightening) So you adopted them?
Me- Yes, you might say we did.
Journalist- So they are twins?
Me- No, they are brothers.
Journalist- (about to pursue the matter, but thinking better of it, moves to a new topic) What are their names?
Me- Tatum and Powell.
Journalist- They sound like last names.
Me- They are. I named them after two of my favorite jazz pianists, Art Tatum and Bud Powell.
Journalist- Are your boys musical?
Me- I wouldn’t say so. But one likes to sit on the piano when I play.
Journalist- Describe them to me.
Me- Well, they are frisky, curious, and they are black.
Journalist- Black? (pause, not sure how to proceed) Were they adopted from Africa?
Me- No, their parents live in the U.S.
Journalist- What do you know about their mother?
Me- Not much. I was told that she gave birth while living in an empty lot next to a freeway off-ramp.
Journalist- (heeding her inner voice to develop another line of questioning) What, with your professional duties, have you and your wife been able to devote sufficient attention to your sons?
Me- We have done our best. They seem happy and carefree.
Journalist- The optimism of youth. Your sons are in their 20’s. Do they have romantic relationships, girlfriends, boyfriends?
Me- Not a chance.
Journalist- Not a chance?
Me- They have limited contacts with other….
Journalist- (interrupting) You are a strict father.
Me- I am just concerned about their safety.
Journalist- I appreciate that, but you can only protect them so much.
Me- I suppose that’s true. I shouldn’t be that concerned. After all, they are fixed.
Journalist- Fixed in their ways?
Me- Yes, you could say so, but at least they have no interest in the opposite sex.
Journalist- (getting red in the face and opting yet again for another line of questions) What are the things you like and dislike about your sons?
Me- What I like is that they respect the house and the furniture. And they sharpen their claws and teeth elsewhere.
Journalist- You mean they have their priorities in place.
Me- Yes. But their proclivity to pass back and forth in front of me is disquieting.
Journalist- Why would that be of concern?
Me- It brings bad luck.
Journalist- How so?
Me- Well, they are black.
Journalist- (becoming apoplectic) To… to imagine… that you… you, of all people, are a racist.
Me- A racist? What are you talking about? I just have this silly superstition thing that I am trying to deal with. I‘ll get over it.
Journalist- I must tell you that I’m dismayed to learn that you are a horrible parent without a clue how to raise a child.
Me- What do you mean? Our sons are well fed. They receive love and affection even when they don’t return it. Why, we even let them sleep with us. And on cold nights they crawl under the covers.
******************************************************
The journalist slapped her napkin down upon the table. I thought this was a good time to change the subject. I asked her what she thought about First Amendment rights for corporations. Without saying a word, she forcefully pushed her chair back, got up from the table and strode out of the restaurant. I had my dessert and coffee alone, and picked up the check.

Tiny Pools of Perspiration

The headline smacked me in the face. Despite Money Woes, Judges Train in Luxury. (Daily Journal, August 11, 2009.) A thousand tiny pools of perspiration dampened my forehead. The pools overflowed and the rivulets cascaded down the craggy crevices of my face. (The two preceding sentences appeared in a draft of an opinion I wrote on the issue of retraxit. For some reason my colleagues refused to concur unless I deleted the sentences. So I thought I would use them here.)
I had already made my plane reservation. The next day I was scheduled to leave for the Dolce Hayes Mansion Resort in San Jose to teach a class with Justice Perren at the Judges College. How could I fly to San Jose and teach at a posh resort while the state teeters on the edge of bankruptcy? But it was too late to cancel my ticket without a penalty. When I arrived the next day at the opulent hotel at about 11:30 a.m., I didn’t see any judges. They were all in class diligently pursuing their daily studies from 8:00 in the morning to 5:00 in the afternoon to become more proficient in their profession.
My investigation confirmed what the article had acknowledged. The rate was a mere $110 per night which included the use several meeting rooms. Try and get those amenities at Motel 6 for that rate. But during the short one-hour lunch period, the judges told me how the story may have been passed to newspapers. The strands of my thinning hair stood at attention. A few days earlier, a "mole," posing as a judge, had infiltrated the college and “nosed” around asking questions. He pretended to be just another student judge hanging out with the new judges during breaks between classes. One student judge became suspicious when the faux judge said to him, "Someone told a friend of mine that the hearsay rule is dead. Do you think that's true?"
No one was sure whether the uninvited guest was a reporter. Sorry, I just used an out-of-date term. Today they are called “staff writers.” Does that mean they “write” the news rather than report it, or are the two synonymous? Ben Hecht’s play, The Front Page, which opened on Broadway in 1928, was about newspapers and "reporters" in days gone by. The play tells a riveting story about a capital case and the wise-cracking reporters covering the story who worked out of City News Bureau of Chicago. Reporters were cynical and tough-minded. Every detail of a story had to be thoroughly checked. If your mother said she loved you, the rule was, check it out. No doubt the term derived from their mission to accurately report the news. But I digress.
Suppose the "mole," let's call him an investigative journalist, was sued for something scary like defamation or invasion of privacy and wound up in court. I bet he would expect the judge hearing his case to be competent, fair, unbiased, conscientious, knowledgeable, industrious, thorough, scholarly and respectful ‑‑ just some of the traits the JNE Commission considers important in its evaluation of nominees for judicial office.
No doubt these thoughts were not on his mind. He was looking for an exposé. He did not find one. Despite the headline, the Daily Journal article accurately "reported" that the California Rules of Court require new judicial officers to attend the college and the bids were solicited more than a year ago. (See Cal. Rules of Court, rule 10.462.) True, the resort was nice, but the rooms were inexpensive. And the judges worked hard for two weeks learning about evidence, civil and criminal trials, family law, and a multitude of other subjects taught by veteran judges. The newly appointed student judges, like their predecessors who have been attending the college for over four decades, will become the outstanding jurists for which California is well known. They will be highly skilled in their task to decide a multitude of cases for litigants seeking justice.
But the article about the Judges College highlights the concern over expenditures during a budget crisis. Some judges critical of the Administrative Office of the Courts' budget and its decision-making process have voiced their opposition to court closures. They argue that cuts should be made in other quarters, namely, the huge bureaucracy of close to 1,000 employees at the AOC. This, in turn, drew criticism from the Chief Justice who questioned the motivation for their opposition. But it appears that these judges have agreed to take a voluntary pay cut to proportionally match the mandatory cuts for court employees whether the courts are open or closed.
During governmental budget crises, there is no shortage of views about where best to make cuts. Our Legislature was at an impasse for months over the issue. I am sympathetic to the judges who wish to keep the courthouse open at all costs. After all, the courts are here to serve the public. But the same can be said about numerous programs that serve the public that have been discontinued during this unprecedented budget shortfall. Wherever a budget cut is made, there will be a legitimate argument that some other cut should be made instead.
I hope that in the future criticism will be expressed openly and respectfully without insults and invective from either side for those expressing the other point of view. Some judges I interviewed for this column expressed the belief they may suffer repercussions for candidly offering their opinion about budget cuts. They pose the hypothetical that a few judges may not be able to take a voluntary pay cut because of house or medical payments, college tuition for their kids, or other financial concerns. Will their names be published? I hate to say it, but that may happen even if they have never expressed a view in their life. Some staff writer somewhere may just want to publish a list. Oh dear. I didn't give anyone an idea to do this, did I?
I spoke with a number of judges about this column and, out of an abundance of caution, promised not to disclose their names. But they all wanted their names to be mentioned. One outspoken judge said he would take the fall for everyone else. But I decided not to mention any judge's name. I don't even want to mention my own name. This is not because anyone can or will suffer retribution for speaking out on a budget issue. But an open, frank discussion about budget cuts is itself bound to have frightful consequences.
For example, one judge I spoke with suggested that during this credit crunch the Judges College should meet for just one intensive six-day week. That is a great money saving idea. But, oh no, that could mean my class could be cancelled. You don't think that writing this column will result in my class…. Forget you have read this column. Don't talk about it. Anything you remember about it, keep it under your hat. I can feel it. A thousand tiny pools of perspiration are beginning to form on my forehead.

What Tangled Webs of Words We Weave

A long time ago. A really long time ago, when I was a practicing lawyer, that’s how long it was, I enrolled in a Keogh plan. Not so long ago, it was worth something. Why would a young, carefree bachelor (wait a minute, strike the word “carefree”) want a Keogh plan? It might have had something to do with an admonition from my contracts professor in law school at the beginning of the semester. He cautioned that those searching for certainty would best not enroll in law school. At the time the warning seemed counterintuitive. The law was supposed to provide certainty and predictability. But, as I read judicial opinions, I became more and more certain of the law's uncertainty. This well could have stemmed from the uncertainty of my ability to comprehend some of these opinions, or was it the uncertainty inherent in language?

I thought that perhaps I had mastered the uncertainty of language when I tried to make sense of Penal Code section 1203.2a. To give you a taste of what I was up against, here is the first sentence of the statute, all 177 words:

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.

Got it? That paragraph is a piece of cake compared to the third paragraph, which I do not have the heart to quote. Suffice it to say, it did not make sense to me on the first read. But my intuition told me that meaning lay hidden in
1203.2a's forbidding density. Want to know what I thought of all this back in 1991? See People v. Holt (1991) 226 Cal.App.3d 962.

Just in case you are not rushing to call up the case, I will share my comments, despite it being unbecoming to quote one’s self. "It is an unenviable chore to consider 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." Holt, at p. 965. I persevered in my "trek through the statute's thicket of tangled clauses." I took on the fearsome first sentence and wrestled with its mind-numbing language. I then struggled with other unwieldy sentences and miniaturized them, or, if you will, cut them down to size.

This herculean effort allowed me to pin section 1203.2a's gangly shoulders to the floor so that I could wrest from it meaning, after which I needed a rest. (Sorry, couldn’t resist.)

To once again quote myself, "Our (a sop to my colleagues who concurred) efforts have not gone unrewarded. The statute has a specific meaning that apparently was not discernible to other courts." Holt, at p. 965. That last sentence did not win many friends in those "other courts." And some colleagues in subsequent decisions rejected my interpretation. But a few years later, the California Supreme Court, in a masterful display of erudition, saw it my way. In re Hoddinott (1996) 12 Cal.4th 992. The statute concerns a defendant who has been placed on probation and is committed to prison for another offense. The court that placed him on probation has jurisdiction to impose sentence under certain conditions concealed, I mean specified, in the statute.

Please, it is unnecessary to register your admiration for my unflagging efforts. It's all in a day's work.

But my insecurity about uncertainty remains imbedded in my DNA. And this takes me back to my Keogh plan. It had grown over the years, until recently when it took a nosedive, bringing home to me that sound financial planning (an oxymoron) can still lead to uncertainty. If that wasn’t enough, the geniuses from the financial group who invested my funds in a variable annuity account recently sent me a letter titled, “Supplement to the May 1, 2009 Prospectus.” The letter informs that the following paragraph replaces a paragraph in the Option 1 section of my prospectus. The enlightening paragraph states:

If rebalancing is required, the contract value in excess of 30% will be removed from the Limited Subaccounts on a pro rata basis and invested in the remaining Non-Limited Subaccounts on a pro rata basis according to the contract value percentages in the Non-Limited Subaccounts at the time of the reallocation. If there is no contract value in the Non-Limited Subaccounts at that time, all contract value removed from the Limited Subaccounts will be placed in the Delaware VIP Limited-Term Diversified Income Series subaccount. We reserve the right to designate a different investment option other than the Delaware VIP Limited-Term Diversified Income Series as the default investment option should there be no contract value in the Non-Limited Subaccounts. We will provide you with notice of such change. Confirmation of the rebalancing will appear on your quarterly statement and you will not receive an individual confirmation after each reallocation.

The last two sentences are understandable, albeit, not comforting. But I am willing to bet the seeming gibberish in all the other sentences has something in common with the 177-word sentence in Penal Code section 1203.2a. These impenetrable sentences actually mean something. All I have to do is take the time and patience to decipher their meaning. But first I must read the paragraph in the Option 1 section of my prospectus. Lots of luck finding that. Nevertheless, I think I can gather the meaning of the paragraph by once again relying on my intuition, but here I can do so without enduring the exhausting battle of section 1203.2a. Yes, I think I have it. I lose money.

This all proves that judges' work is not pretty. We must ferret out meaning from perplexing statutes and abstruse appellate briefs. (I leave for another day the task facing those who seek to divine the meaning of appellate opinions and trial courts' statements of decision.) We do not seek praise or a pat on the back for our efforts. I have already alluded to this earlier. It is our job. It is why we get paid.

Speaking of pay, neither do we seek plaudits for our willingness to take a cut in pay to help reduce our state’s budget deficit. That job I leave to our legislators. I would advise them to simply wrestle the budget as I did section 1203.2a. Oh dear, it just occurred to me. They drafted section 1203.2a.

What's in a Name? Everything.

Last week I was driving home from a luncheon in Palos Verdes. I took the Harbor Freeway north. Please notice I did not say the "110." Everything was fine until I took the transition road to the Century Freeway west. Please notice I did not say the "105."
I have little to say about people who use numbers in place of names other than this: like vampires, they have no souls and suck the life blood out of our language. And also please note I did not say, "I transitioned" to the Century Freeway west. A perfectly healthy noun should not be transformed into a mutant verb.
To make matters worse, the sign next to the transition road labeled the road with the unimaginative "interchange." Despite this shortcoming, there was something refreshing about the sign. It has a name, not a number. It is not "Interchange 39." No, this "interchange" bears a name, the name of a distinguished judge who sits on the Ninth Circuit Court of Appeals. The sign reads: "The Judge Harry Pregerson Interchange." I know and respect Judge Pregerson, but, I have to admit, I am a bit envious. The only thing named after me is my trash can. And I erased my name from the container because a judicial protection officer said it was not wise in this day and age to have my name so publicly displayed. I thought that advice reasonable until some wise guy suggested it should also apply to my opinions.
I can understand how courthouses can be named after prominent judges, lawyers, and politicians who have made significant contributions to the cause of justice. Several names in the Los Angeles area come to mind: Stanley Mosk, David V. Kenyon, Alfred J. McCourtney, and my colleague, Steve Perren. There is also Clara Shortridge Foltz, Ed Roybal, and Ed Edelman. And let's not forget the Mildred L. Lillie Law Library. But a freeway "interchange"?
Through my research I learned that Judge Pregerson earned the distinction of having an "interchange" named after him because he presided over the lawsuit challenging the construction of the Century Freeway. When the case began, Judge Pregerson was a federal district court judge. During the trial, he was appointed to the Ninth Circuit. Nevertheless, he continued to try the case and see it to completion. Good for him. No new judge should have to jump in the middle of that mess and get up to speed. And it would be unthinkable to everyone, except the side that ultimately lost, to declare a mistrial and start all over again. It doesn't take a genius to conclude that without Judge Pregerson's decision there likely would have been no Century Freeway for some time to come.
I wondered why they didn't name the whole damned freeway after him instead of a measly "interchange." Further research supplied the answer. The freeway was already named after someone. It is officially known as the Glenn Anderson Freeway. Glenn Anderson was the congressman representing the South Bay who fought to have the Century Freeway built.
Official names given to freeways and "interchanges" do not mean all that much. If I had asked instructions on how to get from Palos Verdes to downtown Los Angeles, do you think a gas station attendant would say: "Take the Glenn Anderson Freeway to the Judge Harry Pregerson Interchange"? Not a chance, particularly when today we don't have gas station attendants. Would the guy sitting behind the bulletproof glass in his sealed enclosure know the answer to my question? Of course not.
Nevertheless, I think it would be nice to have even a portion of a road named after me. I don't expect anything so magisterial as a freeway, let alone a transition road, but how about a stop sign, or maybe a curb? The Presiding Justice Arthur Gilbert loading zone would do. But, the way we name things these days, it would probably have a number in some bureaucratic register: "Loading Zone #349, aka, the Presiding Justice Arthur Gilbert Loading Zone." I would prefer it be a passenger loading zone where people, not cartons of suppositories, are "unloaded" (another word I hate). I would like my passenger loading zone to be in front of a prestigious building. I can just see the dispatcher who hails the next taxicab at LAX (I mean Los Angeles International Airport) for the Ambassador from Ghana. "Please take His Excellency to the Presiding Justice Arthur Gilbert Loading Zone at the Beverly Wilshire Hotel."
To get such recognition, I have to have decided a significant case. Wait a minute! Speaking of Beverly Hills, it just occurred to me that I have as much a claim as Judge Pregerson to be named after a byway. He has his case. I have mine. In Friedman vs. City of Beverly Hills, 47 Cal.App.4th 436 (1996), I wrote the opinion that upheld the right of the City of Beverly Hills to give preferential parking to residents. Think the City Council would go for the "Justice Arthur Gilbert Preferential Parking Zone"?
But it is hard to buck the tide in favor of numbers over names. The battle was lost years ago. Before he went into politics, our feisty Senator S.I. Hayakawa lost the fight against the phone company who scuttled enchantingly named telephone prefixes in favor of numbers. The San Francisco-based Anti‑Digit Dialing League simply could not connect. And we lost such charming names as Hillside, Exbrook, Crestview, Poplar, and Murray Hill to area code numbers.
But in many cases it is appropriate to hide names to protect privacy. Jurors are designated by numbers. In dependency and juvenile cases, California Rules of Court, rule 8.400(b)(2) provides that appellate opinions refer to the parties' last names by their initials. The reporter of decisions argues that this approach does not provide sufficient protection and that we also should use initials for the first names. When the first name is unusual, the court rule sanctions that approach. But if we use this method in all cases, the opinion will read like a badly written law school hypothetical. Aren't they all?
This practice could even spread to the judiciary. Lawyers might go for it. If judges are known only by their initials, lawyers would have no reticence criticizing the judges' misperceived deficiencies. Query: Should we use both or one initial? It is a tough choice for me. If I use the initial of my first name only, I could be confused with Hester Prynne. If I use the initials of my first and last name, I could be confused with the Attorney General. Affirming a 105-year prison sentence in a criminal appeal and signing it "A.G." might seem biased. At times I feel as estranged from our impersonal world as was Franz Kafka. I think I will follow his lead and write a novel about the evil that permeates our world. The first sentence will read, "Call me Arthur G." Mmm… maybe we should drop the G.

THE FORGETFUL TOURIST

Observant readers of the Daily Journal have noticed that my column has not appeared in the last few months. In November of 2008, my wife, Barbara, and I took an around the world odyssey to glimpse the wonders of the world. My colleague Justice Richard Mosk and his wife, Sandy, persuaded us to join them and 80 other inquisitive types who, like us, did not see the economic crises coming when they signed up. The plane was a private 757 jet, the interior of which was reconfigured with 88 first-class lush leather seats. So November was shot, and then December was spent sleepwalking in the fog of jet lag. The fog sat on silent haunches, but did not move on until January.
I could tell you about the “House of the Sun” at Machu Picchu; the towering moai of Easter Island; snorkeling off the coast of Australia at the Great Barrier Reef; the elephant ride around Angkor Wat in Siem Reap, Cambodia; the spiritual aura of the Jokhang Temple in Lhasa, Tibet; the stunning beauty of the Taj Mahal in Agra, India; the giraffes and zebras stopping by our van for a visit in the Serengeti National Park in Tanzania; the colossal grandeur of the Temple of Karnak in Luxor, Egypt; the walk through the gorge known as the Siq in Petra, Jordan, where one comes upon the intricate façade of the Treasury, the temples and brilliantly conceived dams and waterways built by the Nabateans more than 2,000 years ago; or the bewildering maze of cobblestone alleyways, as they were hundreds of years ago, twisting and turning in all directions in the Medina of Fez, Morocco.
But I won’t. A more edifying story concerns the relationship between me and Fred, my backrest. It was similar to that between Tom Hanks and “Wilson,” the volleyball, who (yes, “who” is the appropriate word) was Hank’s best friend on a deserted island in the film "Cast Away." As the story unfolds, discerning readers will detect the principles of negligence, and issues of excusable neglect and guilt bubbling below the surface.
Our tour was scheduled to leave from Ft. Lauderdale, Florida. But to get to Florida, we flew steerage class to Miami from LAX, we being my wife and my friend, Fred, who gave much needed support for my lower back. Fred was there to prevent my back from "going out," which could render me incapable of climbing the 350 steps of the Potala Palace in Lhasa, Tibet, or of surviving the lurching of our van as we accelerated to avoid a charging elephant in Tanzania.
To ensure that I would not forget to take Fred from location to location, I wrote in the first page of my travel journal - "DO NOT FORGET FRED." We landed in Miami, and I grabbed my "things." To be specific, my windbreaker, carry-on bag, and, of course, Fred.
We disembarked and squinted in the glare of the terminal where the Mosks were waiting for us. First class disembarks first. I placed my “things” on a dark-colored chair and excused myself to use the restroom. I returned and grabbed my "things" and we proceeded towards the exit. At the end of the terminal was an elevator that opened onto a platform where we boarded what appeared to be a subway car that transported us along tracks to the baggage area.
The Mosks accompanied us to the baggage area even though they had no luggage to collect. Out of an abundance of caution, Richard, known for his carefully crafted opinions, sent his luggage on the week preceding our trip to the hotel in Ft. Lauderdale. Months earlier, he had cautioned me: "Should the airline lose your luggage, you and Barbara would be in big trouble without luggage for a month." (The foregoing sentence is the expurgated version.) However horrific this would be, gathering all that was necessary the week before departure, rather than the night before, was a task beyond my capability. After several warnings, I said, "Richard, don't worry." (Another expurgated version.)
Yet, the Mosks accompanied us to gather our luggage at carousel #23. We had planned to share a cab for the half-hour drive from Miami to Ft. Lauderdale. We waited and waited; our luggage did not appear. A young lady wearing an American Airlines uniform announced in an indifferent tone, while she popped her gum, that there would be no more luggage arriving on that flight. I deserve congratulations on the manner in which I conducted myself after her insouciant announcement. I did not actually strangle her. I do not believe the virtual strangulation played out in exquisite detail in my mind's eye counts as even a misdemeanor. I also had the presence of mind to say in a cool, quiet tone, before Richard could utter a word, that I appreciated his not saying, "Didn't I tell you so ----." Dear reader, I leave to your discretion what word to place in the blank.
It was close to midnight and I suggested to Richard that he should go on to the hotel in Ft. Lauderdale while we tried to straighten out the luggage problem. "Are you sure?" he said as he grabbed Sandy's arm and walked out of the terminal.
As I seethed over my misfortune, I took solace in the knowledge that we had the entire next day in Ft. Lauderdale, time enough, I hoped, for the airline to locate our luggage. Minutes later, the young baggage lady announced with a barely discernible lilt in her voice that in fact more baggage from our flight would be arriving shortly on our carousel. Our bags emerged from the cave of darkness and landed side by side on the carousel which took them on the short journey to our eagerly outstretched hands.
We dashed out of the terminal, but the Mosks had already left. We hailed a taxi and loaded our luggage in the trunk and our other "things" in the back seat. So what if we had to pay the full fare and not share it with the Mosks? Things were working out. Just as the cab began to pull out from the curb, I realized things were not working out. Fred was missing. The episode that immediately followed this discovery I dare not relate. I am not a large person, but I became King Kong on the tower of the Empire State Building.
Let's just leave it at this: Barbara talked the cabby out of calling 911, and the back of the cab is now in reasonably good condition. I did make a significant contribution to the 2009 edition of the Dictionary of Obscenity and Taboo. The cabby suggested I go back to the baggage area to see if I could locate Fred. I leapt out of the cab and raced back to carousel #23, now empty, but still snaking around on its journey to nowhere. The young woman was still there chatting on a cell phone and still popping her gum. “You didn’t happen to see.…” I said, but then caught myself. Of course she hadn’t. I had left Fred in the terminal. His color is dark brown and I had set him on a dark brown chair. He had blended in with the chair. How would you have ruled on my motion for relief because of excusable neglect?
To get back to the terminal I would have to go through security. I could imagine how smoothly that would go. I had no baggage and no ticket. Assuming I could pull that off, I would then have to wait for the little subway train to take me to the terminal. It would take forever. And it was quite likely that someone had flagrantly filched Fred. Forget it. Dejectedly I walked out of the terminal and looked for the cab. It wasn’t there. Cabs are not allowed to park for more than a few minutes at the curb where passengers are picked up and dropped off. For the past fifteen minutes, my wife had been in the cab with its meter on, circling the airport, in a strange city. I paced back and forth trying to remember where the cab had been parked.
Then I saw Barbara waving frantically from a cab. I ran to the curb that goes along the outer circle and the cab came screeching to a halt. I climbed in without Fred. Barbara took my hand and reassured me that someone who needed Fred had found him and would put him to good use. That provided a modicum of comfort. Yet, I couldn’t help but feel that I had betrayed my friend. I knew how painful it had been for Tom Hanks to leave his buddy Wilson bobbing around in the ocean.
We arrived at the hotel at Ft. Lauderdale and popped into bed exhausted. The next morning we bumped into the Mosks who had just retuned from a stroll into town. Sandy told us about a medical appliance store a short ten-minute walk from the hotel. They had an assortment of backrests. I bought one, Sylvia, who accompanied me on the trip around the world. She was a congenial companion.
I am not sure there is any moral or lesson to be learned from this unremarkable story of loss and recovery at the outset of an extraordinary trip. Maybe it teaches us about the whimsy of fate. Negligence leads to a loss, and fate steps in with a solution--sometimes. Fate also could have given any one of us the life of a child struggling to survive the harsh streets of Agra, India. These children, who surrounded us with trinkets to sell as we entered the grounds of the Taj Mahal, would likely never escape from their hard gritty lives so graphically portrayed in “Slumdog Millionaire.” The unrealistic ending of the movie seemed to satirize a romantic "Bollywood" ending that these children would never experience.
The loss of a backrest is no big deal. By the end of the trip, I learned that losing Fred taught me not to beat myself up for my negligence. I pass on this advice. Lose a summary judgment motion? Don't fret, just learn from the experience to do better next time. This philosophy works—most of the time.
Last week I was on a panel at a lawyer’s convention in San Diego. I got a ride and took Sylvia with me. I thought I might write at the top of my notes not to forget her when I leave the hotel where the convention was held. I wonder if it would have mattered if I did. I could go on, but this story is more prosaic than edifying. No point in again submitting to you a motion for relief. On the plus side, there is always next time. Wait till you see the 2010 edition of the Dictionary of Obscenity and Taboo.

TAKING IT PERSONALLY

Division 6 of the California Court of Appeal 2nd District, where I do my job, is located two blocks from the ocean in the beautiful city of Ventura. The name of the city is in fact "San Buenaventura." But “Ventura” seems fine with most of the residents. In this respect they are unlike many of their counterparts who live in the emerald city up north and cannot abide the appellation “Frisco.” I suppose Frisco sounds boorish in comparison to the more euphonious Ventura.
But how about “L.A.”? What could be more impersonal than initials to refer to the City of Angels? Yet few people in Los Angeles are offended by this stunted sobriquet. However one refers to Los Angeles, it is no less a vibrant city, and too preoccupied managing its cultural, economic and diverse interests to be self-conscious about its nickname. Yet, I wonder how the women of Philadelphia feel about their historic city's motto. I think it should be called "The City of Sisterly and Brotherly Love."
A reference to a city is only a word, but, depending upon the context, words often carry deeply felt emotions. Is San Francisco “liberal” and Ventura “conservative”? Whatever those terms mean, the feelings they evoke depend on whether we are talking about politics, cultural values, economics or clothes.
Ventura’s yearly summer county fair gives the community an important tie to the past. So, in that respect, I suppose the fair is an event that reflects a conservative value, not necessarily a political agenda. 4-H club kids caring for pigs, pygmy goats, prize turkeys, cattle, proud roosters (are there any other kind?) and rabbits speak of a past age instead of a new age. Most rings were in the noses of the bulls instead of the people. The very name, “fair,” connotes balance and acceptance.
At the fair was a hypnotist. She enlisted volunteers from the audience to come on stage and act stupid. I wasn’t impressed. I do that without being hypnotized. Some would argue that this column is an example. My friends asked the hypnotist to turn me into a political conservative. It didn't take. She confirmed that no one will follow unreasonable commands. I do not want to be labeled politically as a conservative or liberal, but I am not much concerned about being viewed as a conservative dresser.
This just proves that words matter according to the context in which they are used. But those who use words to attack individuals for their opinion defeat rather than advance their own point of view - particularly in judicial opinions.
In Boumediene v. Bush, 128 S.Ct. 2229 (2008), our high court held that the protections of the Detainee Treatment Act were insufficient and that alien detainees at Guantanamo were entitled to the constitutional protection of habeas corpus to challenge the legality of their detention. In a separate dissent Justice Antonin Scalia disagreed with the majority and agreed with Chief Justice John Roberts' dissent that the act provided "the essential protections that habeas corpus guarantees." He further argued that all historical evidence showed that the writ of habeas corpus would not be available for aliens captured abroad.
But what struck me about Scalia's dissent was the manner in which he criticized the justices in the majority. He scored those colleagues for making the war on Islamic radicals harder on our country, which “will almost certainly cause more Americans to be killed.” The weak adverb “almost,” to modify “certainly,” certainly did not do much to let the majority off the hook. At least Scalia is almost, but not absolutely, certain the justices in the majority will cause Americans to die. He ended his dissent with the warning, "The Nation will live to regret what the Court has done today."
Whatever the merits of Scalia’s dissent, it was not enhanced by the harsh moral indictment of his colleagues. A defendant charged with a crime may not suffer a conviction solely because of a judge's ruling that the defendant was denied one or more constitutional rights. Whether the judge made the right or wrong ruling, he or she is “almost certainly,” I mean certainly, not the cause of harm the defendant may inflict on some future victim.
Last month I attended a symposium at Peppperdine School of Law entitled “Lawyering and the Craft of Judicial Opinion Writing,” moderated by Professor Douglas W. Kmiec. The panel members included U.S. Supreme Court Justice Samuel Alito, Dean Kenneth W. Starr, 10th Circuit Court of Appeals Judge Michael W. McConnell and former U.S. Solicitor General Walter E. Dellinger.
Starr said that a textual approach to the law is the preferable one. Alito suggested that judges should start with the language of a statute, and apply the law. This may involve interpreting the law, but it does not involve drafting the law. Alito voiced his disagreement with Judge Learned Hand’s dictum, “The best way to misinterpret a statue is to read it literally.”
But to literally take a statue at face value in some cases would produce an absurd result that would be contrary to the Legislature's intent. An old but no less vital case, Riggs v. Palmer, 22 N.E. 188, 189 (1889), gives us an example: "There was a statute in Bologna that whoever drew blood in the streets should be severely punished, and yet it was held not to apply to the case of a barber who opened a vein in the street." No reasonable court would hold a barber liable because he nicked the person he was shaving. The soccer mom devoted to her son, one day in exasperation over his misbehavior, says, "Johnnie, I'm going to kill you." No one could seriously argue she has made a terrorist threat. Alito acknowledged that it was unremarkable that the majority and dissent in Dist. of Columbia v. Heller, 128 S.Ct. 2783 (2008), the gun control case, reached different conclusions. This, even though Scalia, who wrote the majority opinion, and Justice John Paul Stevens, who wrote the dissent, were both drawing their conclusions from their respective examination of the Second Amendment's history. Alito said this divergence of opinion was not "disturbing."
This takes me back to Scalia's dissent in Boumediene. It was disturbing, not because it presented a historical view about the application of habeas corpus that differed from the majority view, but because of its accusation that the majority has harmed our country. A carefully drafted opinion that will persuade is one in which the author carefully chooses and arranges the words to make an argument. When the argument becomes a personal attack, it loses its vitality and the judiciary suffers. Perhaps that is why Alito joined Roberts' dissent, and not Scalia's.
Maybe the hypnotist at the Ventura County Fair could drop by Scalia’s chambers and “put him under.” While he is in a hypnotic state, she could suggest that in the future he argue his points without personal denunciations. But it probably may not work. I fear he just might think the suggestion unreasonable.

A Good Limerick is an Oxymoron

There is a rumor working its way through the courts: the Judicial Performance Commission is investigating a trial judge because he wrote limericks in a statement of decision. If this is true, I bet they were bad limericks, or were insulting to a litigant. A five-line poem that opens with “There once was a . . . ” where lines one, two and five rhyme with each other, and have three metrical feet, and lines three and four rhyme with each other and have two metrical feet, should be outlawed. I hold limericks in such contempt that I would never admit to writing several or even one.

A few years back, my wife and I attended the opera. We sawVerdi’s La Traviata. The program notes told of his lover, Guiseppina Strepponi, whom he eventually married. She was a superb soprano and starred in his early operas, notably Nabucco when it was first performed in 1842. Ms. Strepponi was an important influence on the great composer, and an obvious inspiration that gave rise to his masterpieces. I was so moved I immediately scribbled out a poem on my program.

At the intermission I read it to an elegant lady, who sat down next to me on a large couch in the salon where I was waiting for my wife who was in the restroom. She smiled and asked if I liked the opera. “Yes," I answered, and said, “I also found the program notes about Verdi’s lover interesting. Would you like to hear the beginning of a poem I wrote about Verdi and his lover?” Before she could answer I read it to her.:

Guiseppina Strepponi

Loved Verdi and spumoni,

Was his lover, not a crony,

His muse, his rigatoni.

Can you believe it, she got up from the couch without saying a word? And my poem was not a limerick. It is odd how poetry can upset people. But if a judgment causes a litigant to pay lots of money or lose his freedom, I suppose he does not want to read:

There once was a crook named Jones,

He got all his funds through loans,

His life was once sunny

When he took plaintiff’s money,

This judgment will make him atone.

We must not take words for granted. They are more than mere sounds from a throat or squiggles on a page; they can deliver great emotional force. The limerick, the lowest form of poetry could make any litigant feel demeaned. Because a limerick is short, when it mocks, the words can easily hit their target. But larger grouping of words in opinions or statutes are often regarded with so little care, that they are misinterpreted, or simply misunderstood.

Take for example California Penal Code section 1203 from which I tried to wrest some sense in People v. Holt, 226 Cal.App.3d 962, 966 (1999.) The first paragraph of the statute reads: "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 been imposed for the offense for which he or she was granted probation . . . . " So far it makes sense, but then it goes on and on to say "in the absence of the defendant, on the request of the defendant made through his or her counsel, or for himself etc." This one sentence continues with its meandering clauses to a 177 word confusing finish. Sentences in the statute's remaining four paragraphs are not any better.

Assume you read: “They are frightening judges.” What does that mean? Are the judges scaring the lawyers, or vice versa? Context may explain what the sentence means, but we should not have to guess what it means. Most importantly we should never take anything we write or read for granted. The following case illustrates my point. I use it as an exercise in a writing course I teach to judges.

Defendant, a writer of limericks asserts that plaintiff R. Frost has not taken the road less traveled. Plaintiff brings an action to prove that he has. The following is his testimony:

Two roads diverged in a yellow wood,
And sorry I could not travel both
And be one traveler, long I stood
And looked down one as far as I could
To where it bent in the undergrowth.
Then took the other, as just as fair,
And having perhaps the better claim,
Because it was grassy and wanted wear;
Though as for that the passing there
Had worn them really about the same.
And both that morning equally lay
In leaves no step had trodden black.
Oh, I kept the first for another day!
Yet knowing how way leads on to way,
I doubted if I should ever come back.

I shall be telling this with a sigh
Somewhere ages and ages hence:
Two roads diverged in a wood, and I--
I took the one less traveled by,
And that has made all the difference.

At the conclusion of plaintiff's testimony, defendant does not cross-examine, nor does he produce witnesses. He rests and argues plaintiff has not sustained his burden of proof.

Judgment for plaintiff or defendant? In a paragraph or two write a Statement of Decision supporting your ruling.

What do you think? Valedictorian speakers at high school graduations often use this case to conclude that we, like plaintiff Frost, should courageously strike out on her own and take the road less traveled.

But is that in fact what Frost did? Some judges decided yes. They argued that if, after seeing and hearing plaintiff Frost testify, they were convinced he was credible, he would have proven his case. The evidence he presented was not disputed and he was not impeached through cross examination.

Others argued that even crediting Frost’s sincerity, he failed to prove by a preponderance of evidence that he took the road less traveled. Through his own testimony he established that neither road had been exposed to more or less wear than the other. He thought one road might qualify as less traveled because it was “grassy and wanted wear.” Yet, he acknowledges that usage of these roads had worn them about the same. The morning Frost plaintiff saw the roads, they were covered with apparently the same amount of leaves, and neither road showed evidence of travelers setting foot on them “in leaves no step had trodden black.”

Retired San Diego Superior Court Commissioner James L. Duchnick offered a poetic analysis:

There once was a poet named Frost

Who claimed, in poor rhyme, he was lost

But those in the know

Could with ease clearly show

Both his syntax and purpose were crossed.

He admitted both paths were the same.

At the time no clear difference could he name.

But with hindsight he poses

We should laud him with roses

For a bravery of choice he would claim.

In summation, his effort is clear.

To engender a motive to cheer.

But the choice made that day

In an offhanded way

Was by a traveler who never knew fear.

"Judgment for Defendant."

Los Angeles Superior Court Judge David W. Stuart elevated the limerick to a new high with:

There once was a poet named Frost.

Who stood before two roads that crossed.

He looked at the first,

And thought it the worst,

Took the other and got himself lost.

I would argue that Duchnic and Stuart were justified deciding the case via rhyme. If the litigant uses poetry, why not the judge?

But, in most cases, poetry, and limericks, in particular, do not belong in a judge’s ruling. I know this because I listened to my inner voice for advice. This is what I heard:

There once was a judge not so solemn.

His opinion solved many a problem.

He often told jokes,

To all the good folks.

But limericks he saved for his column.