Do Not Praise Me—Please… Unless I Truly Deserve It

         I read about the discovery of the Higgs boson.  It is as comprehensible as a mortgage-backed securities case.  Einstein explained how gravity works through his theory of relativity.  Higgs boson, I think, explains or at least helps scientists understand how the universe works.  If there were no Higgs boson, there would be no mass, no anything, no us.

         I applaud the scientists for their momentous discovery.  And I praise them for their detection of “dark matter” which is reputed to make up most of the universe.  Just look at the state of the world and this discovery is not all that surprising.

         The Higgs boson discovery, and the date on which it occurred, July 4, 2012, inspired me to search for a principle that explains our moral universe.

         The boson particle is minutely small, yet it was discovered.  In similar fashion I seek to explore the small choices we make every day, the choices that explain and reflect who we are and who we choose to be.  I leave to others to explore the big life-and-death choices most of us never have to make, whether to risk one's life by rushing into a burning building to save lives or by diving into a turbulent river to save a person from drowning.

         It is ironic, if not eerie, that I embarked on this quest because of an incident that occurred on July 4th, the very day of the Higgs boson discovery.

July 4th - I ran, jogged, crawled, the annual 10K-5K race in Pacific Palisades.  I have “run” this race since its inception 35 years ago.  It’s not an easy course.  The “switchbacks” from Sunset Boulevard uphill to the polo field at Will Rogers State Park are grueling, especially if, like me, you are in your eighth decade.  With the passing years, my “time” has been progressively slower.

         But out of the 3,000 or so runners, damned few in their 70’s run the 10K.  To accommodate Father Time, I have “run” the 5K for the past several years.  This year I thought about taking a shot at the 10K.  My knees pleaded with me to drop the idea.  They presented a petition supported by my appendages and organs threatening to boycott such an attempt.  My brain took the petition under submission and opted to make the decision where the 5K wimps, I mean runners, turn back to the finish line, but where the 10K runners forge on for the next 3.2 miles.

         My brain is the most fickle, obstinate organ in my body.  It drives me and everyone else nuts. As soon as I started the race, my brain knew the 10K was not an option.  I could have immediately communicated this decision to my anxious knees, but I waited for the turnaround point to make the definitive decision - “We will do the 5K.”  So I finished the 5K in a little over an embarrassing half-hour.  But for the senior 70’s, the time was not disgraceful.  I waited for my younger jock friends to finish the 10K.

         We looked up our times.  One of my friends won a medal.  And what do you know?  I came in second for my age group.  They give medals to the top three in their age group.  The medal I had won a couple of years ago for coming in third would have company with my new medal.

         At the award ceremony, I climbed the stage at the call of my name and accepted the medal which the judges placed around my neck.  I hammed it up a bit, posed for the photo, and gleefully left the platform.  

         It was on the second or third step off the platform that my glory evaporated with the sweat on my forehead.  The announcer said something like, “And congratulations again to the winners of the 75 to 79 age group.”  But that is the group I will be in next year assuming I live that long. 

         My friends were patting me on the back.  Apparently they did not hear the announcer.  They had to restrain me from going back up on the stage where medals now were being given to the 100 to 105 age group.

         In desperation I ran into the nearby gym and found an official.  I told him I thought I had been awarded a medal that I had not earned.  He looked up my name on the computer.  He found it and immediately congratulated me.  “Good time for a guy born in 1932,” he said.  I told him I was born five years later.  “My parents had no intention of having a kid in the middle of that depression.”

         I removed the medal that hung around my neck and handed it to him.  I asked him if he could find the person who had come in third in the 70 to 74 age group, the age group in which I should have been, the age group in which I, in fact, finished 9 out of 19.  He found the guy who came in fourth in the 75 to 79 age group before I became disqualified.  That person would now receive a medal as the third place winner; the third place finisher would now be second.  I was so relieved.  I felt like I had decided a case that corrected an injustice.

         The hubris that had dissipated from deflating my earlier discovery began to experience a Lazarath-like rebirth, as the official praised me for my honesty and integrity.  Just as I was about to say “Aw-shucks,” hubris went down for the final defeat.  I thanked him for his kind words, but said that I was not deserving of praise merely because I told the truth.

         “Perhaps,” he said, “but few people these days would have turned in the medal.”  Hubris once again tried to raise its moribund head, but I kicked it back down, and then began to take pride in that accomplishment.  This could go on infinitum.  The official and I wished one another a happy Fourth of July, and I, Mr. Middle-of-the-Pack, went home.  I would have much preferred the praise I would have earned if I had come in second.

         This incident got me thinking about judicial decisions.  On occasion judges receive praise for a “courageous decision.”  I would hope that judges decide a case the way they think it should be decided according to the law.  In some cases one could argue that an appropriate break with precedent is courageous.  But even in such a case, the judge is ruling in accordance with guidelines and principles. 

         There are superb decisions, but I hesitate to call them courageous.  A judge who makes an unpopular decision with the public may be reviled.  The experience is not pleasant, but the judge knows she or he is simply doing what the job requires.  Los Angeles Superior Court Judge Anthony J. Mohr is a talented writer of fiction.  In his story “Regarding Hercules,” Judge Mohr brilliantly explores this phenomenon in the July 2012 issue of Advocate, Journal of Consumer Attorneys Associations for Southern California.

         But a judicial decision motivated only to win public acclaim earns the judge a meaningless, undeserved medal.  Trial and appellate judges usually have the opportunity to correct an inadvertent error, to turn in a medal not earned.  This opportunity is available to all of us in the legal profession.  To be conscious of our choices makes it possible for judges and lawyers to win deserved medals of recognition with the public.

         I think I just found the principle I was looking for.  It applies to all people.  It is the succession of small moral choices we make each day that make up the composite of who we are.  It leads to the recognition of our true selves from which we can draw satisfaction, not from other people’s perception of us.

         Having said this, I, like a true scientist, am still skeptical.  I cannot be certain that my principle applies in all situations.  Keeping in mind that absolute rules rarely work, it may be wise to consider my principle together with another principle expressed by Henry David Thoreau:  “Do not be too moral.  You may cheat yourself out of much life.  Aim above morality.  Be not simply good; be good for something.”

The Illusion of Independence

In two days it will be Independence Day.  But lately I am plagued by this nagging fear that the majestic adjective preceding the noun may be an illusory description.  However jaded I sound, my dismal outlook is not surprising.  What else can you expect from a judge concerned about judicial independence?

          I always had this notion that despite the tension between our three branches of government, the judiciary, like the other branches, is independent.  But this independence is not absolute.  The judiciary receives its funding from the legislative branch, and both branches have often argued about how much funding is enough.  But despite occasional skirmishes, there was never a doubt that the courts would exist and do their job.

          This was my unshakable perception.  An article in The New York Times on Sunday, June 24th, entitled The Science of Illusion, by Alex Stone, created fissures through the certainty of my perception.  The article points out that our visual perception of reality lags a fraction of a second behind what we see.  This enables the adroit magician to dupe you into believing he has placed a coin in one hand, which he hasn’t, and astound you by producing the coin in the other hand.  A skilled conjurer plays on a person’s “cognitive bias” to astound, delight or trick.

          Scientists are using some of the magician’s tricks to study our perceptions and the decisions we make that flow from them.  Experiments have led scientists to reach disturbing conclusions.   Reality and our perception of it are not always the same, and this leads to a lack of awareness about how we arrive at many of our decisions. 

For example, subjects were asked to decide which of two jams they prefer. After the subjects chose their favorite jam, through sleight of hand, the jams were switched, so that the subjects thought they tasted the original jam on a second taste test.  Apparently influenced by their original choice, the subjects invariably chose what they had considered the less favorable jam on the second taste test, even though the jams had dissimilar flavors.

          This would be a good test for all of us, and judges in particular.  It alerts us to be aware of how faulty the premises upon which we make our decisions can be.  And this takes me back to what could be my faulty perception about judicial independence.  Certainly the judicial branch carries out its responsibility to decide cases that often have important consequences for the other branches.  But that assumes the courts are open to fulfill their constitutional mandate.

          A popular song from a Broadway show in the 1920's was titled "Yes! We Have No Bananas."  So yes we have no money to sustain government as we knew it in the past, and large budget cuts are necessary.  And yes worthwhile programs are being dismantled causing great suffering among some of our poorest and most vulnerable citizens.  And yes, without doubt, the courts must bear their burden of the cost cutting even though the judiciary’s budget is less than 3 percent of the total budget.  The judiciary has dramatically cut the CCMS program, halted numerous court construction projects, and laid off countless staff.  And specific court reserve funds are being used for current expenses.  But the impending closure of civil courtrooms constitutes a serious threat to the judiciary’s existence as an independent third branch of government.

          In Shakespeare’s Henry the VI, Part 2, Jack Cade, a rebel who seeks to overthrow the king and the established order, instills fervor as he addresses an unruly mob.  A butcher yells, “First thing we do, let’s kill all the lawyers.”  I have seen this famous line enshrined on the wall of more than a few lawyers’ offices.  I suppose they were trying to convey they are tough advocates who will fight for the client’s cause at all costs. 

          But, in fact, the butcher’s comment is a brutish recognition of the importance of society’s legal institutions to resolve disputes in courtrooms instead of in the streets.  Without a full functioning system of justice, society faces anarchy.  I do not suggest that the closure of many civil courtrooms throughout the state will plunge us into anarchy, but it will have serious far-ranging consequences.  It will greatly increase the sense of hopelessness many citizens feel in the current economic climate.  Many defendants facing likely economic sanctions for a variety of civil misdeeds, whether they be large corporations or single individuals, whether they be in family law court, probate court or small claims, will have no incentive to settle, or to resolve their cases in arbitration.  The cynical rhetorical question is “Why should they?”  The sting of a righteous lawsuit is greatly reduced when the trial, if held at all, will be in the distant future.

          I have heard much about the so-called Great Depression in the 1930’s.  My parents graphically described what life was like then.  As bad as things appear today, my second-hand impression of what it was like in the 1930’s leads me to conclude we are far better off today than we were then.  Yet, even back in the 1930’s, anecdotal reports from people who are still with us today tell me that the courts were still open.

          Courts make every effort to defer to the other branches.  They seek to resolve cases on narrow grounds and seek to fairly interpret legislative intent.  This deference must work in the other direction as well.  Let us hope the ultimate funding solution for the courts will take into account the necessity that the courts remain open. A magician’s sleight of hand will not work.  Let us all take another look at the judiciary's budget so that the executive and legislative's perceptions align with reality, and that strawberry jam is not mistaken for peach.  Happy Fourth of July.

Judge Loren Miler Jr.

     It is a week after the New Year's bowl games, and I have gotten them out of my system. Well, not exactly. The Fiesta Bowl keeps haunting me. It was an exciting game, and even though I am not a Stanford University fan (what can you expect from a UCLA and UC Berkeley School of Law graduate?), I cannot get Jordan Williamson out of my mind. With three seconds left, Williamson, the much-sought-after kicker, came out on the field to kick a 35-yard field goal to win the game against Oklahoma. But much like a surefire winning case with only one more key witness to call, it didn't turn out that way. He kicked, but the ball hooked to the left and missed the goal. The score was tied, and in overtime, he once again missed a 43-yard field goal. Oklahoma won. Williamson, sobbing in the locker room, could not be consoled no matter how much his teammates tried to convince him that one person alone is not responsible for the loss, not a particularly persuasive argument in this instance.
     That Williamson’s gaffe occurred in a well-played game, and was not a matter of earth-shattering importance, is beside the point. No one likes to screw up in front of millions of people. So how does a 19-year-old freshman, or anyone for that matter, get beyond this embarrassment that he will remember for the rest of his life?
      I am not sure, but if George Foreman could get over his defeat in the world heavyweight boxing match in Zaire to Muhammad Ali in 1974, I have hope for Williamson. Foreman shook off his corrosive despair, regained the heavyweight title 20 years later, became a minister and good friends with Ali, and promoted a grill on which I have cooked vegetables and turkey burgers.
      However odd it may seem, Williamson's angst over his all-too-human goof got me thinking once again about my dear friend and colleague, Judge Loren Miller Jr., who passed away last month. The pain so many of us felt over our loss of this uniquely warm human and outstanding jurist is of a different and far more profound character than Williamson’s angst. But that is not why I thought of Loren. Loren would have known just how to talk to Williamson. I would bet he would have had Williamson laughing through his tears. Loren would have explained to Williamson that he was human and he has a lifetime ahead of him to accomplish great things and also to screw up now and then as we all do.
     Loren was a judge of incomparable ability who understood human frailty and who put cases and life experiences in perspective. He articulated his philosophy with warmth and humor. Loren knew how to talk to those whose "screw-ups" landed them in prison or jail. He had an unerring sense of what sentence to impose and did it in a manner that gave many defendants hope for the future.
     Loren played football for the University of Oregon. And just prior to the Stanford game, Oregon won their first Rose Bowl championship in 95 years, defeating Wisconsin. There were plenty of goofs during those 95 years. Good things can happen with the passing of time. Loren reminded us that even judges have to face up to their shortcomings. We have higher courts to remind us of that.
     I met Loren when he was first appointed to the Los Angeles Municipal Court. In the summer of 1975, Frances Rothschild was Gov. Jerry Brown’s first appointment to that court. I think she had just passed puberty. She is now an Associate Justice on the California Court of Appeal. On Aug. 18, 1975, now superstar attorney Elwood Lui received a call from Brown appointing him to the municipal court. It must have been a few minutes after the governor called me to inform me of my appointment to the Los Angeles Municipal Court. To this day, Elwood insists that he received the first call. The Governor refuses to shed light on the issue. Apparently, he has a few more important things on his mind.
      Justice Richard Mosk of the 2nd District Court of Appeal, then a successful lawyer, arranged to have his father, Justice Stanley Mosk, swear me in on Labor Day. I think Elwood found out about my impending swearing-in ceremony and arranged to be sworn in the day before me. He still lords it over me that he will always have seniority, even though he is a few years younger. A week or so after that, Loren was appointed to the municipal court.
      Loren, Elwood and I became close friends. I have a group photo of our formal swearing in. Pictured in the photo is Loren, Elwood, me, Justice Frances Rothschild and Presiding Justice Norman Epstein, Gov. Ronald Reagan’s last judicial appointment to that court. It looks like a junior high school graduation photo. We were all in our 30's.
     Both Loren and Elwood dared me to write a column about one of our shenanigans at California's premier Judges College in Berkeley. The college presented newly appointed judges with an intensive two-week course on a variety of subjects that were invaluable training for new judges.
     We were serious students. But after class was another matter. Loren's expertise in short sheeting was legendary, a skill he demonstrated with consummate artistry one evening. As witness to this feat, accomplished with stunning deftness in a matter of 25 seconds, I can assure you it was performed in the evening after court hours. I will not reveal the well-known judge who was my roommate and who, along with his bed, was the object of the short sheeting. The unsuspecting judge was momentarily out of the room when the skillful maneuver was performed. Because of the oath Loren administered to me, I swore not to reveal the trap that had been set. I went to bed early that night and fell asleep before my roommate quietly prepared for bed. After slipping between the covers of his adjoining bed, he swore so loudly that he woke me up. Can you believe that? Well, he got over the incident. And when he learned Loren was the perpetrator, he thought he must have deserved it.
     Loren lived to see a better world. He mentioned to me that his grandfather was a slave. His father, the renowned judge, writer, editor and lawyer, Loren Miller, won many civil rights cases, including Shelley v. Kraemer (1948) 334 U.S. 1, which abolished restrictive racial housing covenants.
     A firm commitment to justice is firmly ingrained in the DNA of the Miller family. Loren was a judge of unscrupulous fairness. He applied the law and imposed tough sentences when required, but at the same time had a heart. He was compassionate and kind. Even the most hardened felons who received tough sentences at his hand revered him.
     Loren's daughter Superior Court Judge Robin Miller Sloan and his son Michael, a public defender, and daughter Nina, a school teacher, carry on the tradition of their father and grandfather. Their father set a great example. We can take heart that Loren lives on through them and through what he has taught us. Along with his commitment to the rule of law was his recognition that judges, though charged with awesome responsibility, are simply human, and that justice and compassion are compatible.
     Good-bye Loren. We will not forget you.

The Past Provides Myth and Reality

I can’t believe it. My last two columns were about the so called Top 100 whatever lawyers, judges, taxidermists, you name it. I received more e-mails on these columns than any previous columns, except the ones I have written about cats. One cannot imagine how many hundreds of cat lovers there are in the legal profession, except for a few who find the feline species abhorrent. Well, what do you expect from judges?
I had hoped that, at last, we are done with the “tops,” and the “best,” and the “greatest,” when just last week I received the slick 47-page magazine supplement to The Los Angeles Times, “Southern California’s BEST LAWYERS-The Definitive Guide to Legal Representation in Southern California.” Let us hope that this column, Part III, will be the last in the series.
The “best” in the magazine greatly outnumber the Top 100 lawyers that I mentioned in my last two columns. Some lawyers were both in the Top 100 and Best Lawyers lists. Some made one list, but not the other. I wonder why. They all deserve praise, but the manner of selection still puzzles me despite the comprehensive explanation in a box at the bottom of page 12. The box is entitled “METHODOLOGY.” It explains that selection is “based solely on a vote of [the lawyer’s] peers.” It is a relief to know that “listings cannot be bought," and that “no purchase is required to be included.” Does this include the full page photos of lawyers in smartly tailored suits and warm engaging smiles informing the reader of the benefits they derive from the firm’s representation?
I do not doubt that the “Best Lawyers” magazine in fact does list highly competent lawyers. I just think the list of the “best” or the “top” is not comprehensive. There are plenty of first-rate lawyers who are not mentioned in either list. Whether deserved or not, the advantage to being on a list of "the best," "the brightest," "the most wonderful" is that it satisfies the ego and helps business. Lists and marketing have replaced love and marriage as inseparable.
The same principle applies to law schools. Are the best Harvard, Yale, Stanford, Berkeley Law-Boalt Hall….? If I were to rate smaller, less known law schools, I would put the Monterey College of Law on the top of the list. Two weeks ago, I journeyed to Monterey, California to participate in the law school’s Heisler Moot Court program. The yearly event, named after legendary civil rights lawyer Francis Heisler, was held in the World Theater on the Cal State campus. Several hundred people in the community witnessed a spectacular display of appellate advocacy by the students.
I had participated in this program a few times in the past, and I once again joined my colleagues, Justice Patricia Bamattre-Manoukian and retired Monterey Superior Court Judge Richard Silver to sit on the appellate panel for the 25th year of this unique moot court. What has remained constant over the years is the student's high level of competence. Their inventive professors, Joel Franklin and Michael Stamp, never at a loss to create an intriguing problem, crafted a legal case involving a national mandatory vaccination program. Does this program override the rights of members of a church, the religious tenants of which are opposed to vaccinations? And can this law run afoul of the Commerce Clause? Professors Franklin and Stamp, and the articulate students who presented both sides of the case, gave us a preview of how our National Health Care Bill may be argued before the United States Supreme Court.
My trip to Monterey also gave me the opportunity to spend some time with my friend, Blaine Gibson, whose father Phil Gibson was California’s preeminent Chief Justice. Signed photographs from Gibson’s friends, Presidents Kennedy and Johnson, including his entire cabinet, Chief Justice Earl Warren, and other dignitaries line the walls of the warm hacienda-style home in Carmel where Blaine grew up. Over wine and cheese, Blaine and I talked about what the court was like during the forties and fifties.
However more complex our society is today, I fail to see why it can take more than 70 pages to write, often in impenetrable prose, a United States Supreme Court opinion or a Supreme Court opinion of any individual state. Perhaps these courts are burdened with so many cases that time does not allow for a briefer legal analysis. Oliver Wendell Holmes' and Benjamin Cardozo's opinions were tightly written; clarity and substance prevailed.
The same can be said of opinions authored by California’s two great Chief Justices Phil Gibson and Roger Traynor. In Jackson v. Pasadena City School Dist. (1963) 59 Cal.2d 876, Gibson, writing for a unanimous court, held it a violation of equal protection for a school district to gerrymander school zones to achieve segregation. He said it in five pages. In Sei Fujii v. State of California (1952) 38 Cal.2d 718, Gibson wrote the majority opinion, striking down as a violation of equal protection the California Alien Land Law, which prevented an alien Japanese from owning land. He took a few more pages, 17 1/2, to write this historic opinion. And Justice Jesse Carter's 14-page concurring opinion eloquently refutes the dissent's charge that the majority "desire to make the law what [it thinks] it should be." (Id. at p. 738.)
Gibson was our Supreme Court's supreme administrator. He persuaded the Legislature to transfer the authority to draft rules of appellate procedure and ultimately all the rules of practice and procedure to the Judicial Council. He created the Judicial Performance Commission and wrote 670 opinions. Unlike what is de rigeur today, Gibson sought to avoid the spotlight and publicity. He did not aspire to a "best" list. He let his work speak for itself and left the court in better condition than when he joined it.
I hope I have not distorted the past through the lens of nostalgia. In many significant ways, the law has progressed, and we recognize rights that had long been denied our citizens. Philosopher and critic Marshall McLuhan posited that we romanticize earlier ages and make them into art forms. Take the “West,” for example. There may have been lonesome cowboys sitting around evening campfires giving voice to inarticulate thoughts through the mournful notes of their harmonicas. But the laconic Marlboro Man was a myth invented by characters like those in Mad Men, a creation of Madison Avenue. It is unlikely that he was the archetype for those who herded unruly cows crammed together on the dusty plain. (I probably got that image from a movie but no matter.) Instead, the Marlboro Man was on a plane en route to film a commercial that sought to sell nicotine against the backdrop of an ersatz past. Mel Brooks, on the other hand, got it right in Blazing Saddles. We know the consequences of bacon and beans around the fireside. Similar consequences often flow from giving primacy to marketing over ability.
Some aspects of the past, however, serve as a useful model for the present. Our two great California Justices Phil Gibson and Roger Traynor proved that the best can rise to the top without a list or an advertisement.

The Tops - Part II. 100 Our Of 7 Billion

I can’t help it, but when I follow a car with a bumper sticker that states: "My kid is an honor student at Grover Elementary School," I am tempted to rear-end it. Can you imagine marketing your kid? And this takes me to my last month’s column.

We explored the corrosive effects of the "Top 100 Lawyers." We could include the "Top 100 Anybody." These exclusive clubs, which often are undisguised marketing devices, do not produce salubrious consequences for numbers 101, 102 and those after, continuing to infinity. Gnashing one’s teeth is not healthy. Why am I writing about something we have already explored? Bear with me and you will understand. I had posed an inquiry: "Top according to whom?" If I had said "according to who?" doubtless I would not be considered for inclusion in the list of the "Top 100 Grammarians."

Besides not knowing who makes the selection, another troubling aspect of these lists is that it is just as hard on those in the "top" as those not in the top, and maybe even more so. The Daily Journal list of the Top 100 Lawyers is not forever. It is a yearly undertaking. Assume you are selected. The year of self-satisfaction, exhilaration, and smugness disappears in an instant when the next year’s list is published sans that one important name yours. This demoralizing moment often lives on for years.

So-called friends and colleagues cannot stop themselves from asking in the most innocent manner that scarcely hides their joy, "So why were you not included in the Top 100 this year?" As if you knew. And there is bound to be the superfluous declaration that sneers, no matter the tone in which it is voiced, "So looks like you didn’t make the top this year," or the niggling, "So you were kicked out of the top this year."

This does not happen with other honors. Win an award, and most times, everyone knows it is a one-time affair. That Madame Curie, Linus Pauling, John Bardeen and Frederick Sanger were awarded the Nobel Prize twice is hardly a put-down for those who won the award only once. Many have won an Academy Award more than once. It is not a source of embarrassment for those who have not. Even the obnoxious bumper sticker I mentioned earlier is not as bad as being in the Top 100. Putting aside the boastful advertisement, "My kid is an honor student," and the implied message, "Your kid isn’t," to most people, the kid is anonymous. And if the kid doesn’t make the honor roll one year, the braggart parent will likely not peel off the sticker and no one will know the difference. I still see "Al Gore for President" stickers on old cars.

In addition to not knowing who picks the Top 100, my frustration also stems from not knowing what standards are used to make the selection. I have heard that the criteria used to determine the Daily Journal Top 100 Lawyers are written in Enigma code. Advanced Enigma-decryption techniques were unsuccessful in breaking the code.

After publication of my last column in October, I was heartened by the numerous sympathetic e-mails I received, including many who had been included in the Top 100 Lawyers and some who had been listed in some organization’s list of the Top 100 Judges. They all swore to me under penalty of perjury they had not a clue how they got there. That helped me cope with and get over the "Top 100" phenomena.

But no sooner had I recovered, when in mid-October, I received the Daily Journal supplement featuring the "Top 100 Neutrals." I must register objections on more than one ground. First, the term "neutral" calls to mind surgical procedures veterinarians perform on cats and dogs. Yes, I understand that "neutral" means free of bias or interest. From this do we conclude that those "neutrals" who are not in the Top 100 are biased in some manner?

You might question why I should be so greatly perturbed over these Top 100 phenomena. To be frank, I feel it breathing down my neck. You don’t think that being on and off the Top 100 Judges list hasn’t taken its toll? And what if I retire and become a…a…I can barely bring myself to say it… a…neutral?

To make matters worse, about a week after the Daily Journal published its list of neutrals, another event occurred that brought even greater pressure to bear on the Top 100 phenomena. On Oct. 31, the world’s population reached 7 billion. This means being in the Top 100 is even more difficult to achieve than ever before. When the world population was a measly few hundred million, being in the Top 100 was not as big a deal. More of us had a chance. Now it is even harder to be in the Top 100, and harder to stay there. With 7 billion people in the world, the odds of my being a Top 100 neutral are not promising.

This means if I ever retire, and I have no plans to do so in the near future, I may have to forego becoming a neutral. People will think I am biased if I don‘t make the Top 100.

I may have to look for other work. I would like the work in some way to relate to the law. I read in The New York Times about a guy who New York detectives call whenever they need "fill-ins" for line-ups. The money is not all that good, but it would be something different, sort of like being an extra in a movie. It’s not hard work, it relates to what I do, and I wouldn’t have to memorize lines unless maybe say something like, "Give me all your cash," or "Don’t nobody move."

I doubt I will get much work because not all that many people with AARP cards commit violent crimes. But with the bad economy, you can never tell. With my luck, however, I bet I would be fingered as the culprit and wind up doing time for a crime I did not commit. That could get me on a special category for the Top 100 Retired Judges list.

California Lawyers Are The Tops Part I

Today's column is about something all of us in the legal profession know well, "erratum." When spoken, it sounds euphonious. "Erratum," as you all know, is a fancy Latin word for screw-up. But first a parenthetic observation followed by a question. It is permissible to say "screw-up" in any venue. Its ubiquitous counterpart is used with abandon in HBO dramas, and is apparently an essential expletive for stand-up comics. Yet, it is eschewed in the commercial media, and shunned in some refined circles. Why is that?

Now back to the subject. Erratum is an error or mistake. I wade through a brief the size of a telephone book and . . . . Sorry, but here is another interruption with a question from a young law school graduate, "What's a telephone book?" Answer, "Imagine taking all the words from War and Peace on your Kindle or iPad and printing them on pages and binding them together in a book." Follow-up question from same young graduate, "What's War and Peace?" Answer, "Look it up on Wikipedia."

Once again, back to the column. I read… to be more accurate, I slog through the turgid prose of a humungous brief drafted by a lawyer or, more likely, a committee of lawyers. A week later, I find on my desk a slender binder bearing the same caption as the oversized brief I tackled the previous week. Printed on the cover of this thin, seemingly innocuous binder is the dreaded word "Errata." Oh my heavens, the plural of "erratum."

The errata or mistakes are listed in several pages referencing sheets or pages in the original brief. The errata brief may point out that a certain number of cases cited were depublished, or never published in the first place. In any event, they are not citable. One great signature erratum that makes judges cower is the lawyer's neglect in failing to insert the word "not" in many seemingly affirmative statements, thus changing the entire meaning of the legal argument.

I imagine lawyers find it annoying to hear judges complain about their errata. So today's column is, among other things, about a judge's errata, to wit, my own.

Like most of my columns, last month's column was about many closely and tightly related subjects, like MICRA, California's Medical Injury Compensation Reform Act, and the Los Angeles Lawyers Philharmonic. Because of a "typo" (no excuse), I stated that MICRA limited non-economic damages to $25,000. Of course, the amount is $250,000. Many careful readers caught the erratum, including Los Angeles Superior Court Judge Alan Goodman. But he reasoned that my "typo" was not really an error. The Legislature's failure to raise the non-economic cap from the inception of MICRA in 1975 makes its present value around $25,000. Judge Goodman is a brilliant and creative jurist.

My next erratum occurred when I attended the Daily Journal reception for the "Top 100" lawyers in California at the posh Beverly Hills Hotel. I pulled up to the parking valet who opened the driver's door for me. As I emerged from the car, the valet quickly opened the back door, skillfully pulled my coat off its hanger, and effortlessly slid the sleeves of the coat up my arms that I had conveniently stretched out in parallel position behind my back. This was a class event.

I dodged a Lamborghini and side-stepped a Rolls-Royce competing for the next attendant. I avoided eye contact with the lawyer protesting at the entrance to the hotel. His placard read, "UNFAIR TO ME, THE TOP 101st LAWYER IN CALIFORNIA." Because I had arrived early, I dropped in for a drink at the swank Polo Lounge before attending the reception. While sipping a cocktail and feasting on a bowl of guacamole, my idle thoughts led me to ponder how a lawyer makes the top 100. After receiving the check for my drink and the avocado, I lunged from the Polo Lounge.

Was it the exorbitant amount of the check that distracted me and led to my second erratum? I went to the table at the reception desk to collect my name tag. Would the tag read, "Justice Arthur Gilbert," "Presiding Justice Arthur Gilbert," or "Star Columnist Arthur Gilbert"? No matter, the vivacious young woman seated behind the reception desk could not locate my name tag. I had no choice but to settle for a stark white paste-on tag upon which she scrawled in thin blue ink, "A. Gilbert." I was assigned table #11. A photographer took my picture. I thought it strange that I did not know a soul there. At almost the same time, it dawned on me, and the effervescent woman at the reception desk, that I was at the wrong reception. I, in fact, had not contributed $100,000 to the charity for which the dinner at this reception was being held. They removed my place at table #11 and deleted my photograph.

I found my way to the Daily Journal reception down the hall. I went to the reception desk. Couldn't find my name tag. But that didn't matter. I was glad to be there. I have an affinity for this event because I have been told that I am one of the Daily Journal's top 100 columnists. Rumor has it that I am No. 99.

Again the question popped into my mind, how does a lawyer make the top 100? I asked the Daily Journal's distinguished editor, David Houston, what criteria were used in the evaluation. He smiled and suggested I try the quiche caviar.

I must acknowledge that the "top 100" are an impressive array of dedicated professionals. But there are over 170,000 active lawyers in California. I want the 169,900 or so lawyers out there to know there is nothing wrong with being in the top 200 or 500 or 10,000. Being a member of the State Bar makes you tops. And do not be resentful if you are not in the colorful supplement to the Los Angeles Times that features the greatest, most phenomenal, spectacular, successful, awesome, stupendous lawyers in all creation, lawyers who bring in verdicts of billions of dollars to vast numbers of satisfied clients. Know that by virtue of your profession you are in a noble calling, bringing aid and guidance to people in need.

I suppose, however, it is natural for some lawyers who do not make the top 100 to feel slighted, particularly those who in one year are included, but in the next year are not. I know what it feels like. It happened to me. One year I was included in the 100 top judges, but the next year I was not. I inquired, how could this happen? I was told it was an erratum.

Lawyers and Judges in Harmony

I will admit it. Some of my best friends are doctors. On occasion we argue about our respective professions. We get into these silly comparisons about who works harder and who contributes more to society's well-being. And when we get into discussions about California's MICRA legislation, misnamed the Medical Injury Compensation Reform Act, I sometimes feel like ripping a stethoscope from around someone's neck and putting it to an unintended use. The doctor says, "It keeps medical costs down by limiting unwarranted damages in malpractice suits." I argue that for over three decades it has frozen non-economic damages to a mere $250,000, despite a precipitous rise in the consumer price index. I posit that this cap on damages means the greater the doctor's negligence, the less damages he or his insurance carrier pays.

And then the conversation may degenerate into something about doctors bringing life into the world, and lawyers seeking either the imposition of the death penalty (bad thing) or defending murderers (also a bad thing). I had such a discussion with a doctor a while ago. The "bringing life into the world" topic took a turn into a discussion of childbirth. My doctor "friend" told me that women deserve recognition as true heroines for bearing the burden and pain of childbirth. Who’s going to argue with that? But when she implied that males were wimps, I pointed out that male sea horses carry the eggs of the young and give birth to them. Can you believe that she considered that undeniable fact “the most ridiculous rebuttal” she had ever heard?

And then she made an accusation, which was in fact a disguised inquiry. "I bet this winds up in your column." You would think I had nothing more important to write about. And then she criticized my column for starting out in one place and ending up in an entirely unexpected place. Can you believe it?

But it doesn’t bother me. We judges are used to criticism. Law professors and so-called legal observers relentlessly search for so-called “flaws” in the reasoning of our carefully wrought decisions. And higher courts, well, I guess they are entitled to their opinions. But splashes of disapproval evaporate like morning dew as the sun rises. We don’t take it personally… well, not that personally.

My dissatisfied doctor was too close to her profession to see that MICRA was in need of revision. Her attack on my column reflected a narrow worldview. She yearned for topics that in her limited experience were related. She obviously lacked the insight to see connections that were beyond her ken. What I am saying here is that not everybody “gets it.” If some ignoramus doesn’t… -oh, never mind. Strike the preceding sentence and disregard it in your deliberations about this column. I simply think we should expand our perceptions of the world and periodically question our values. When we challenge the established norm, or even what is politically correct, we may discover something new, the unexpected.

I suppose too many people are locked in their cozy little boxes of the familiar and the conventional. The composer Igor Stravinsky accurately described the phenomena when it comes to modern music. He said that when people remark that they know what they like, they really mean they like what they know. When I related this relevant comment to my doctor friend, she bragged about the doctors symphony. What is there to brag about? The Los Angeles Doctors Symphony admits in its website that its players are not all doctors. Some are veterinarians, and many have never even seen a doctor. Christian Scientists are welcome. How can you call that a doctors symphony?

Speaking of music, that brings me to lawyers. I will make the connection in due course. But, first, I want the record to reflect that I truly like and admire lawyers, judges, and doctors, even if now and then they criticize my column or my opinions. I explained to my doctor friend that lawyers are often castigated when they should be praised. Take for example the Watergate break-in that brought about the resignation of President Richard Nixon. People remarked that many lawyers were involved in the Watergate incident and its cover-up. Yes, but lawyers brought the wrongdoers to justice.

I have heard business people complain that lawyers are obstructionists who lack the creativity to see the beauty of a business deal they work out. “We set up this perfect series of transactions only to have them screwed up by the lawyers.” These blockheads fail to realize that the lawyer’s suggested revisions brought the transaction into compliance with the law and, it is hoped, will avert lawsuits.

Lawyers are creative and resourceful. Their talents extend beyond the law. I am impressed that a proctologist may play the bassoon in the doctors symphony, but I am in awe when Administrative Law Judge Stuart Waxman plays tympani drums in the Los Angeles Lawyers Philharmonic. And in this lawyers symphony all his fellow musicians are connected to the legal profession. Judges Mary Thornton House and Helen Bendix are in the viola section. Retired Judge Aviva Bobb plays in the first violin section. Many of the lawyers and judges in the orchestra received their musical training at such institutions as Julliard, the New England Conservatory of Music, and the Thornton School of Music at the University of Southern California.

It is hard to believe this outstanding legal-musical aggregation of some 75 musicians did not exist until just a few years ago. Please note the connection to Stravinsky and music mentioned a few paragraphs ago. The orchestra owes its existence to its dynamic conductor, Gary Greene also an attorney.

Gary's uncle, renowned Dr. Ernst Katz, had formed the famed Junior Philharmonic a long, long time ago. How long? The year of my birth let's leave it at that. Gary, who was the concert master for the Junior Philharmonic, became its conductor when his uncle died in 2009. Taking over the revered Junior Philharmonic and practicing law afforded Gary a huge block of time, at least five or six seconds, to form the Los Angeles Lawyers Philharmonic. Apparently, Gary does not sleep.

An ad he placed in the paper in 2009, "Musicians Wanted," produced requests for auditions, many of which took place in his law office. When Gary's secretary stuck her head in the waiting room and said, "Mr. Greene will see you now," a probate lawyer, encircled by a tuba, put down his Daily Journal and went in for his audition.

In a mere two and a half years, the Los Angeles Lawyers Philharmonic has given over 24 concerts in such prestigious venues as Disney Hall, the Dorothy Chandler Pavilion, and the Greystone Mansion. Their recent performance at Disney Hall of the IV Presto movement of Beethoven's "Ninth," with the debut of the 100 voice choir, Legal Voices, won a unanimous verdict of praise from the audience, which included opposing counsel in a sold out performance. It is reported that immediately after the concert, 281 cases settled in the foyer.

The orchestra's executive director is Gary's daughter, Debra, a radio news reporter, who has won two Edward R. Murrow awards and the Mark Twain award from the Associated Press. She, who is also a talented violinist in the Junior Philharmonic, manages all aspects of the Lawyers Philharmonic, including publicity, and produces its many concerts. I don't think she sleeps either. Yet, she and Gary are always wide-awake. Mmmm. Could be something in their DNA.

Gary has more verve, more power than any other musical director anywhere. He stands on a podium looking down at lawyers and judges and tells them when they are out of tune, and orders them to pick up the tempo, or to play softer, or not to play at all. Pardon the injudicious comment, but I like our lawyers symphony better than the doctors symphony. Nevertheless, some of my best friends are doctors. Well, at least this column has ended where it began.

Time On My Hands

Judging and much of practicing law involve forays into the past. Of course we do this in the present, and hope that our efforts lead to a predictive glimpse into the future. A typical case, no matter what its complexity, involves a reach into, a recollection of, the past. In simple terms, someone or some entity did or did not do something that caused some type of injury to someone else. In the present we look to the law to help us decide whether redress is possible. We also factor in costs and evaluate the likelihood of success. Is the pursuit worth the effort? And, if it is, will we gain a worthwhile benefit in the future? And this calls into question whether our remembrance of the past is accurate (take note Mr. Proust). How much of the past do we imagine or assume?
Notice all the questions in the preceding paragraph? Notice the preceding sentence is a question? All these questions highlight that our perceptions about time are inexact. And now for yet another question. Sorry. Where does this lead? You expect an answer to all these questions? How should I know? I am used to asking questions. And how would a lawyer typically answer these questions? Gosh darn, another question. But you know the answer to that question. You ask a lawyer, "What about this or that?" And what is the exordium to the answer you receive? Pardon a detour for another question. What does exordium mean? I will rephrase the question. What are the customary words the lawyer uses to preface her answer? "Well, it all depends, Your Honor…."
I may not know where it leads, but I can tell you what it reflects about the law. Uncertainty pervades the profession. We take educated guesses about what the law allows or disallows, and we try to write opinions that elucidate the law as it applies in certain situations. In some cases we get close to certainty, but absolute certainty is an illusion.
We know this in our everyday lives. We may yearn for certainty, but intuitively we know that time makes certainty certainly uncertain. The intersection of the past, present and future is the insuperable roadblock to reaching unconditional confidence into what the future holds. This is tough on columnists, particularly this columnist. I am writing this column now, but my "now" is not your now. My "now" is now in the past for you. And now, while I am writing this column, your "now" is in the future for me. I have no idea whether you will even be reading this column, in which case, I am like a tree falling in the deserted forest.
This philosophic inquiry into time undermines the myth of the omniscient writer. Let me explain. In my last column, I spoke of the superb Los Angeles Lawyers Philharmonic under the direction of its talented conductor Gary Greene. I also shamelessly mentioned that I would be performing in a concert with the orchestra at Disney Hall on Saturday, July 30th. For me now, writing this column, the concert has not yet happened. But for you, it has. I have no idea what the reviews are, but you do. As you read these words, I could be on the stage, the one leaving town, not the one at Disney Hall.
Another example of how a present action that is good for some becomes a past action in the future that can have unforeseen consequences. Many years ago, I authored an opinion, First Central Coast Bank v. Cuesta Tit. Guarantee Co. (1983) 143 Cal.App.3d 12. A creditor bank tried to garnish funds in an escrow due its judgment debtor, a real estate broker. On the date of the levy, not all the funds had been deposited into escrow. Because the funds due the broker were contingent on additional funds being deposited into escrow, the broker had, at best, a contingent right to collect his fees through escrow. Therefore, on the date of the levy, there were no funds to attach.
How did I know that twenty years later, when my wife and brother-in-law tried to attach funds owed them from a real estate broker judgment debtor, the Cuesta case would prevent them from collecting fees in an escrow due the judgment debtor? In plain speak, you never know when the past will rear up and bite you… somewhere.
That actions we take in the present are influenced by past experiences, and reflect our individual expectations for the future, are nothing to fret about. We cannot predict everything about the future, but we we can make good and valid predictions that generally bear out our expectations. Often we have had to sift through numerous facts and, after due refection, have been struck with an insight that justifies a decision that mostly meets our future expectations.
A few days ago Governor Brown nominated Goodwin Liu for the California Supreme Court. I am as close to certainty as possible in predicting that Liu will be one of the great justices to sit on our high court. The Governor considered numerous worthy candidates for this position, and no doubt he weighed the merits of worthy sitting judges as opposed to those from practice or academia. But whatever the pros or cons of those competing views, when someone of such stunning brilliance and accomplishment emerges, you know the present decision will have good future consequences.
Can we predict how Liu will rule on every decision? Of course not. No one, not even Liu, possesses such certainty. But we can be relatively certain his decisions will be made within the framework of his judicial role, and he will be interacting with and considering the views of his distinguished colleagues. And we can be certain that he will reflect on the cases before him and make informed decisions that reflect clear and reasoned analysis.