Stretching The Parameters (Yikes) of Language

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

Law Firm Breaks Up-This one a Reality Show

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judges Must Stay In Tune

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

FIRST THING WE DO, LET'S KEEP THE JUDICIARY INDEPDENDENT

"First thing we do, let's kill all the judges." That is what some politicians want to do to the judiciary. Proposed ways to dispatch the black robed miscreants include: impeach them, abolish their office through legislation, or simply treat them as a trauma center and withhold funding. The threats are anything but parochial. They affect not just the judicial branch, but all citizens.
These threats were ostensibly engendered over dissatisfaction with “activist” judicial rulings, and in particular, the heart wrenching decision in the Terri Shiavo case. All the courts involved in that tragic case were accused of judicial arrogance for a refusal to “follow the law.” But that is precisely what those courts did. For all we know the Florida trial judge who first ordered Ms. Shiavo’s feeding tube removed may have wished to keep Terri Schiavo alive no matter what her condition. But he was compelled to reach his decision on the evidence and the law. Indeed, if the trial judge thought his personal beliefs would have hampered his ability to objectively view the evidence, he would have been required to recuse himself. It was the consequence of his following the law that produced a result that critics found so unacceptable.
Ironically these critics were in effect excoriating the trial and appellate judges for not being “activists.” They wished for a ruling that would have kept Terri Schiavo alive without regard for her wishes or the law. This in turn prompted Congress to enact a "Terri Schiavo law" giving federal courts the opportunity to hear once again a state law matter that had been concluded and this time decide the case correctly. The legislative branch displayed contempt for the separation of powers principle they accused the courts of ignoring. When the federal courts refused to again hear the case, some congressional leaders spoke of a judiciary out of control and threatened to metaphorically “kill all the judges,” or at least those whose decisions they disliked.
The original quote, “First thing we do, let’s kill all the lawyers,” I have often seen framed in lawyers’ offices. Taken out of context the words have been misinterpreted as reflecting a pervasive public mood about pesky lawyers creating havoc with baseless lawsuits. Far from it. They are taken from Shakespeare's Henry VI, Part II. Jack Cade, a revolutionary seeks, to overthrow the government and depose the King. While he is inciting a mob to overthrow the government, one of the ordinary citizens, Dick, a butcher, yells the famous quote, “The first thing we do, let’s kill all the lawyers.”
Far from denigrating lawyers, the quote speaks to the value, significance and importance of a government’s judicial system. It is the hallmark of civilization. Without it, we have anarchy and chaos. How to undermine the government and destroy it? “First thing we do, let’s kill all the lawyers.”
By upsetting the balance between the separate branches of government, Congress seeks to punish a judiciary for deciding cases the “wrong way.” The irony of this crude attempt to usurp the separation of powers is obvious. Yet, several legislators concerned about the Shiavo case were motivated by genuinely felt moral principles, and not just crass political motives. But their dissatisfaction was with the law that the judge was bound to uphold. The trial judge could have ruled the other way if he disbelieved the testimony of Michael Shiavo concerning his wife's wishes, or if he had found unpersuasive the expert testimony concerning her mental condition. And if he had made such findings, he would have been bound to rule the other way.
It is not surprising that numerous courts in both the state and federal system refused to hear the matter. Whatever certain members of Congress felt about the Shiavo decision, federal courts determined that this was a state matter that had been concluded. And under both state and federal law, the standards of appellate review mandate deference to the trial court’s findings. It is rare that trial court decisions are reversed because of insufficient evidence. It is seldom possible to make informed decisions about substantial evidence on a transcript.
That is not to say that we do not nor cannot make valid assessments from the written page. We can draw a multitude of impressions about Madame Bovary, or Anna Karenina. We can try to do the same with the unadorned and seemingly prosaic testimony of a witness in a marital dissolution action recorded in a transcript. The words come to us free from the gloss and refined literary filter of Flaubert or Tolstoy, but our insight is limited. It is the trial judge, observing the witness respond to questions under direct and cross examination who is in the best position to make an informed judgment on credibility. The judge then must render a judgment in accordance with the applicable substantive and procedural law, the rules governing evidence, and burdens of proof. The judiciary has no free reign; it operates under constraints.
Judges, like anyone else in public service are and should be subject to legitimate criticism. Law professors make their living more often “burying” than praising judicial decisions. Even judges judge judges. Just look through the appellate reports. But the current debate on judicial philosophy has caused more confusion than enlightenment. The Shiavo case is an example of how radically different points of view interpret “activism” in radically different ways.
One can understand the desire of the appointing authority, be it the president of the United States, or a governor, to hope if not expect their judicial appointees to rule in a manner consistent with their own judicial philosophy. However subtlty or directly these expectations may be expressed to the prospective nominee, predictability is seldom attainable. Exhaustive questionnaires, probing interviews, and recommendations from "kitchen" cabinets offer some insight, but not certainty as to how a judge will rule in a particular case. However disturbing this may be to a president or governor, that’s how it is and must be with an independent judiciary as a co-equal branch of government.
California understands the importance of a truly independent judiciary. To assure that merit, apart from "political" considerations figure prominently in the selection process, we have an independent Judicial Nominees Evaluation committee (JNE). Created by the legislature in 1979, the JNE commission is an agency of the State Bar created to evaluate candidates for judicial nomination or appointment by the Governor. The Commission is presently composed of 34 members reflecting the rich diversity of our state. Thirty members come from various segments of the legal community and four are public members. They are all selected by the State Bar Board of Governors. The non partisan neutral commission complements the governor's investigative process. It receives and evaluates confidential questionnaires sent out to members of the legal community relative to a nominee's qualifications. Competence, integrity, work ethic, and temperament are areas the Commission explores in depth. The Commission's thorough evaluation may expose factors that make a candidate unsuitable for judicial office. This information, in turn, is beneficial to the appointing authority and to the public.
It is the judiciary from which we expect rigorous analysis, unwavering integrity, and genuine independence. The JNE Commission helps ensure that judges of this caliber are appointed to the bench. But to be effective the Commission must enjoy the same degree of independence that is so vital to a fair and impartial judiciary.
At this critical time when the judiciary is under attack a disturbing proposal has been advanced that threatens the vitality and function of the JNE Commission. The proposal seeks to have the Governor's Judicial Appointments Secretary attend the plenary meetings of the JNE Commission. I can’t imagine a better way to stifle a free and spirited exchange of views. It would be like having a party to litigation before an appellate court attend the conference where the justices discuss the merits of the case. The proposal is simply another way of saying, "First thing we do, let's kill the JNE Commission."
The Board of Governors appointed an ad hoc committee composed of past and current JNE Commissioners to study this proposal. Its report issued in February of this year concludes, "One of the principal reasons JNE has been able to perform its stated and statutory mission satisfactorily is that it has been independent of the political process. The presence of a representative of the Governor's Office during JNE deliberations of judicial candidates would be destructive of that independence, would be counterproductive to JNE'S ability to provide fair, candid, straightforward and unbiased evaluations to the Governor's Office, and would irreparably cripple JNE'S ability to perform its mission. The JNE Commission is an enormously valuable independent resource, and should remain so. It does not make the judicial appointments, nor does it want to. It is an important tool in helping achieve excellence in the judiciary of the State of California."
I concur. The workings of the JNE Commission illustrate how one branch of government has a check but not authority over another branch. This is beneficial to our institutions and the public they serve. We should direct our energies to respecting and preserving the balance of power between our separate branches of government instead of destabilizing that balance. Steps to kill the JNE Commission or the judiciary puts our democracy at risk.
I therefore suggest the following: "First thing we do. Let's keep alive an independent judiciary." Our democracy depends on it.

A closing Argument for Johnny Cochran

Q: When? A: The fall of 1964. Q: Where? A: Division 20, the misdemeanor master calendar court of the Los Angeles Municipal Court. Who? Johnny Cochran and I. Q: You mention your names and not the judge presiding? A: What do you expect from two cocky Deputy City Attorneys barely past puberty? Q: But you are telling us about this today. A: Good point. The judge was Richard Schauer who eventually became Presiding Judge of the Los Angeles Superior Court and a Presiding Justice on the Court of Appeal.
Q: Impressive, but specifically what did you and Johnny Cochran do? A: We were prosecutors, seeking to put behind bars, (county jail bars that is ) dangerous criminal misdemeanants who prey upon an unsuspecting public. Q: How would you characterize the two of you, first Johnny? A: Chairman of the board. Q: And you? A: Me? Q: Yes, you, Tell the truth. A: Senior vice president. Q: Who else is there? A: Lawyers, clerks, witnesses, defendants appearing with and without counsel to enter pleas of guilty or nolo contender or to be assigned out to a courtroom for trial. Q: Do the defendants know they have a right to counsel? A: No, Miranda hadn’t been decided yet. Neither had People v. Dorado (1965) 62 Cal. 2nd 338 (defendant must be advised of right to counsel).
Q: What are you and Johnny doing? A: We are “running” the master calendar court. Q: Why are you not trying cases in a trial court? A: We have tried hundreds of cases, but because we are preparing for special cases that have been assigned to us, the chief deputy has given us a respite in the master calendar court. A: What case is Johnny working on? A: He is preparing for a fraud case that will be defended by Melvin Belli. Q: What does Johnny say about his chances for success against such a formidable opponent? A: He is confident. Q: I didn’t ask for your conclusion, I asked what did he say? A: Say exactly? Q: Yes, that would be preferable. A: “I’ll kick his ass all over the courtroom.” Q: Hmmm. A: Well you asked for an exact quote.
Q: What case were you preparing for? A: The kosher chicken case. You see these chickens . . . . Q: (Interrupting) Would you mind saving that for a future column? A: I could do that. Q: We can hardly wait to read it. Isn't this column about Johnny Cochran? A: Yes, Good point.
Q: So getting back to 1964 in Division 20 of the Master Calendar Court. While you and Johnny Cochran were “running” the master calendar criminal court, did anything of significance happen? A: No, not particularly. Q: So why bring it up? A: I didn’t bring it up, you are the one asking questions. Q: But you are writing this column. A: True, but enough arguing. I remember a typical Johnny Cochran exchange with the judge. Q: So tell us about it. A: Judge Schauer called the name of a defendant, “Thomas Edison Jackson.” Johnny couldn't find the file. In a louder voice Judge Schauer said "Thomas Edison Jackson." Johnny grabbed a file in front of him and said, “Your honor, I see the light.” “Now you’ve done it,” I whispered to Johnny. There was a stunned silence in the courtroom as Judge Schauer glared at us for what seemed an eternity. Finally he spoke. “A most illuminating remark, Mr. Cochran.”
That was quintessential Johnny. He shot me a glance. "Schauer's cool," he said.
Q: So tell us more about Johnny.
A: We met in 1964, newly hired deputies at the City Attorney’s office, an ideal place for young lawyers just out of law school to get trial experience. We tried a potpourri of misdemeanors, but drunk driving cases were our staple. Have times changed. Today, a reading of .10 on the breathalyzer guarantees jail time. Back in the 60’s a reading of .15 could often be negotiated down to a reckless driving.
Many in our class of '64 went on to successful careers. Irv Sepkowitz, besides being one of the funniest and nicest human beings alive, became vice president of business affairs for Universal Studios. Ira Reiner became District Attorney, John Karns, a partner in Karns and Karabian. Charlie Lloyd went on to represent professional football players and became a successful entrepreneur. Also, part of the group was then bailiff Julian Dixon, who during tedious trials studied tedious case books in contracts and torts for his night law school classes at Southwestern Law School. He became a highly respected member of congress.
Johnny was not just a mentor to me, he was an inspiration and a model. His life had been a struggle from poverty in the south to opportunity in Los Angeles. Yet, he was always positive and cheerful. He exuded enthusiasm and confidence. Everyone liked him. If I was feeling down, his very presence was uplifting. You can imagine how juries responded to him. He would flash a smile, begin talking, and another drunk driver or other misdemeanant would bite the dust.
I vaguely remember only one case Johnny lost while in the City Attorney's Office. As I recall the defendant was comedian Lenny Bruce charged with obscenity for uttering words we hear on television sitcoms today. There was the possibility I might have to try a similar case against the playwright and poet then known as Leroi Jones. He later changed his name to Amiri Baraka and became New Jersey's third and most controversial poet laureate. His two one-act plays, “Dutchman, ” and “The Toilet” were being performed at the Coronet theater on La Cienega. I attended a performance. Sprinkled throughout the audience were plain clothes police officers furiously scribbling notes. The tough and raw language, the themes of violence and the belligerent protest against racial injustice roiled the establishment. The City Attorney’s Office under the leadership of Roger Arnebergh was contemplating action. At the conclusion of the performance actress Shirley Knight came onto the stage to rally support for freedom of artistic expression.
During the next few days, Johnny and I met with investigating officers and staff of the City Attorney’s Office to discuss whether an action should be filed. I argued, with support from Johnny, that our obligation was to prosecute criminals, not artists, whose words and language were disturbing to some. I predicted we would and should lose the case should anyone in charge be dimwitted enough to file one.
“Not a bad argument,” Johnny said. “Do the same in court, and you will be one hell of a trial attorney.” We didn’t mention Lenny Bruce.
Johnny was always strongly supportive of law enforcement, this even before his son, the Highway Patrol officer was born. His thesis was simply this. Everyone has a responsibility to do their job right, and to do it with integrity and professionalism. He approached his cases with a commitment to attain the highest level of skill and competence of which he was capable. He strived for excellence. He expected others to do the same in their professions, and that included, indeed was a fundamental obligation of law enforcement officers. "Not to much to ask," he would say, "when people’s freedom and their lives are at stake."
I recall a case in which a personable police officer who Johnny liked and admired, testified in a preliminary hearing in Judge Marion Obera's court. The officer testified that he knocked on the front door, the defendant answered and invited him into the house where he "observed large quantities of drugs." Then came the defense, something unusual for a preliminary hearing. Shortly before the officer had arrived, the defendant and his rock group had been rehearsing for an upcoming gig. They had also been recording the session. When the officer knocked, the band was taking a break, only they had forgotten to turn off the tape recorder. Need I say more. There on the tape recorder, for everyone to hear, was the pounding on the door, the rush of the officers into the room accompanied by threats and obscenities.
Johnny’s disappointment was profound. He had lost a friend, and was furious that this misconduct could reflect poorly on the vast majority of police officers who are skilled professionals dedicated to fulfilling the motto of the department, "to protect and to serve." Johnny, a champion of civil rights, was particularly chagrined because here the officer was black and the defendant white. Johnny, who was ecstatic over passage of the 1964 Civil Rights Act said that at least this unfortunate incident proves we are all equal.
Johnny will always be remembered for the O.J. Simpson case. Many people are angry at him for "winning" the case. But however one may feel about O.J. Simpson, Johnny was not hired to lose the case. He pointed out flaws in the prosecution's case and the Simpson jury had a reasonable doubt. One could debate for years whether, in fact, the case was won because of Johnny's unique skill in connecting with that jury. One of the most astute commentators on the case, Ira Reiner, predicted a not guilty verdict shortly after Johnny had made his opening statement. You did not have to see the jurors to know they were hanging on to every word and gesture.
Whether as a prosecutor or defense attorney, Johnny Cochran was devoted to the cause of his clients. He was a consummate trial lawyer and a warm and engaging human being. Professor Gerald Uelman is reputed to have authored the famous quote: "If it doesn't fit, you must acquit." I would add the less pithy, " Johnny's the lawyer with passion and fire. Johnny's the lawyer I most admire."

Perceptions-Castles of Sand or Stone

For many years now I have had this suspicion that things are not what they seem to be. This troubling suspicion I had stuffed in some out of the way corner of my mind. How silly of me. Once an idea is in your mind, the “out of sight, out of mind” theory falters. It is just as well. A healthy skepticism that stops short of cynicism is a judge’s indispensable attribute.
I have had cause recently to pull my suspicion out of its dusty corner, shake it out, and hang it like a tapestry in a more prominent spot in my modest but cluttered quarters. On sunny mornings when I crave the chirping of birds over the inexorable beat of techno rock that invariably accompanies my workout at the local gym, I jog on a variety of routes in and around my neighborhood.
On occasion my jog takes me to a little street and a lovely Spanish style house and its adjacent enchanted garden. In the garden, which extends from the back of the lot to the sidewalk, are windmills, ponds, fountains, gnomes, toads, toadstools, and I believe an old edition of Shepard’s citations. The house is slightly set back from the street and occupies the other half of the lot. The entrance juts out toward the street in a short L. Three Mexican tile steps take you to the tastefully tiled front porch which serves as an entryway to the front door. On the second step sits an extremely English bulldog guarding the house and garden with unwavering vigilance. Even though I know that he, the toads and gnomes share the same unchanging universe, I expect him to come bounding down the steps toward me. I silently tip my hat to the artist who made such a realistic creation.
I had a cat, now deceased. My secretary Val asked for a photo of him. She gave the photo to an artist who painted a perfect likeness of my cat on a smooth large rock which she gave me as a birthday present. My cat lolls around my chambers and keeps me company while I work. Most of the time I know he is not real. Please don't scoff. I know of people who have given their pets the pathetic appearance of immortality through the services of a taxidermist. There is no comparison between a stuffed pet and a pet rock. But this bulldog looks real, I mean like a real bulldog. He even has a real collar around his neck.
So the other day I jogged to take another look at my enchanted garden , and to my horror saw that the house was up for sale, and that many of the gnomes and toads were gone. The “nothing lasts forever” perception began tugging at my heart. No comfort there. Not wanting to dwell on the loss, I began my jog again, but then for a moment my sprits were buoyed. Out of the corner of my eye I glimpsed the stalwart English Bulldog. I turned around to see my old friend. There he was at a new post, this time at the top of the stairs, guarding the house.
I stopped to gaze. I could almost swear the bulldog was looking at me. Did I see his head move ever so slightly? I got closer. So did the bulldog. He took a few steps forward so that he was just at the edge of the top step. He was growling and baring his teeth. I was taken aback more by surprise than fear that the bulldog could outrun me. Just moments earlier I could have sworn he was not a real bulldog, precisely because the figurine I had seen so many times looked so real.
This unnerving experience prompted me to question my perceptions about other things, including legal issues. The other evening I saw my friend, law professor Herbert Morris, at a lecture. He told me about how affected he was by “extraordinary rendition.” I thought he was talking about Coleman Hawkins rendition of Body and Soul.
My perception quickly changed when I learned he was speaking about the name of a program our country uses to extradite terrorists to other countries not averse to using torture as a method of interrogation. Revelations about this program appear in the February 14th edition of The New Yorker in a story by Jane Mayer entitled "Outsourcing Terror."
It is true we live in extraordinary times that may call for what the Bush administration terms "new methods of engagement." But this method of dealing with certain suspects is not what one would perceive as conceivable in the United States, particularly when we are seeking to spread democratic ideals throughout the world. It is contrary and antithetical to the rule of law upon which our democracy depends. The arguments in support of this disgraceful practice are unpersuasive. I have considered the other point of view, but my perception that this is the wrong way to bring terrorists to justice has not changed.
Nevertheless, we must guard against holding on to our perceptions of issues with unyielding tenacity. When we build barricades against the assault of other people's perceptions which challenge what we hold dear, we close the door to tolerance, reasoned debate, and principled compromise, attributes that are congenial for everyone, not just elected officials and judges.
The recent concurring opinion by Justice Brown in People v. Young 2005 DAR 1209 challenges perceptions about whether black women are a cognizable class in jury selection. Her outspoken views prompted a News Analysis article by Peter Blumberg in the Los Angeles Daily Journal Feb. 4th 2005.
Justice Brown wrote the opinion affirming the death penalty for defendant Young. What is noteworthy is the concurring opinion also by Justice Brown in which she calls into question the decision in People v. Motton (1985) 39 Cal.3d 596. Motton holds that for purposes of deciding bias toward groups in jury selection, black women jurors are a cognizable group. In her concurring opinion in Young, Justice Brown expresses concern with the “endless proliferation of cognizable groups” and sub-groups. She acknowledges that “Black women might be the victims of a unique type of group discrimination justifying their designation as a cognizable group…", but she could find no evidentiary basis for the court to have made that judicial finding in Motton.
Many assume, as did the Motton court, that Black women have long been a group subject to discrimination in jury selection. But Justice Brown’s perception is far different. She posits that the Motton court creates a “pernicious stereotype” that it then pretends to destroy. Does the Motten court accurately portray Black women as a group sharing a similar perspective in attitudes, ideas and experience, or does it demean that group through an unwarranted assumption?
I was struck by the differing perceptions of Brown's points expressed in Blumberg's article and elsewhere. Some argue that Justice Brown, a black woman is insensitive to a class that suffers discrimination, while others argue her views reflect acute sensitivity to the issue. However one views the issue, Justice Brown’s concurring opinion sets the stage for a reasoned discussion which could lighten the weight of some perceptions that had previously been anchored in assurance.
Edward Albee’s recent play, “The Goat or Who is Sylvia?" I doubt one will find on Jerry Falwell’s must-see list. It’s about a man who falls in love with a goat. The play serves as a metaphor for how a radical change of view or behavior upsets settled views. To some it can be so shattering, so devastating that it permanently changes established relationships, and leads to hostility and violence. It's not easy finding common ground and often not possible. But an attempt to understand how others perceive things so differently than we do is a step in the direction of a more harmonious society.
A number of years ago I attended a judicial conference at the University of Kansas. One evening the attendees had dinner at a nearby hotel where a taxidermist convention was in progress. You might not find such a convention at the Biltmore in Los Angeles, but I swear to you there was one in Lawrence Kansas at the Holiday Inn. Justice Brown will back me up on this because she and I were dinner companions. After dessert we strolled through the cavernous hall where the convention exhibits were displayed. There were booths where one could purchase a taxidermist kit. I bought one in the hope I could preserve my opinions that had been depublished by the Supreme Court. I recall someone hawking his services to preserve forever your pet bird, dog, horse or hamster. I wondered whether the people who buy into this creepy preservation actually perceive they are keeping their pet.
After observing a stuffed horse, Justice Brown and I shied away from an extended conversation about taxidermy. I suspect our perceptions were the same.

If Your Theme is "It's Good Enough," It's Time to Change Your Tune

I recently had a birthday. It wasn’t a good one. It came at the same time of the year as all the others. I guess it wasn’t all that realistic to expect this year to be different. My age makes me eligible for curmudgeon status. But I was a precocious child and became a curmudgeon at four. Well you would too, if your birthday comes, as mine does, smack dab in the middle of the holiday season, a few days before New Years. I suppose that is why so many things other than poorly written briefs irritate me during the holiday season.
Take holiday cards for example. Every law firm in town sends its expensive custom card with a snow scene from some vague year in the nostalgic past. There is a sleigh pulled by a frisky horse with cheerful ice skaters in the background. No matter that this is Los Angeles and it’s 82 degrees outside. Or maybe they send a “witty ”card showing Santa being served with a complaint for flying without a permit. And for that personal touch the card bears the name of the law firm in colorful red print. Sometimes two or three different law firms send the same card. They should have a central registry like a wedding registry to avoid duplication. No matter, they all go in the basket along with the third draft of an opinion I am working on. For all I know, the firm on the card represents a party.
But what is the most irritating of all, is the number of form letters I receive during the holiday. These letters often come from persons I hardly know and are filled with information about dozens of people I don’t know, and never want to know or meet, ever. The assembly line letters illustrate our addiction to efficiency and our yearning to be personal. In fact, these letters are the product of lazy writers who will not take the time to craft a letter to a specific individual. Instead they assume their addressees are fungible, bound together by an enduring interest in prosaic stories about unremarkable people living tedious lives. “Dear(name of the addressee written in the blank), Mort and I painted the bathroom last March-only we ran out of paint. Since we bought the paint a long time before we started painting we couldn’t get exactly the same color, so we painted the ceiling a different color than the walls. We thought it looked kind of funny at first, but I think its OK for a bathroom; well, at least the guest bathroom. Ronald, our dog, caught a muskrat last July, brought it into Sparky’s room and dropped it in his bed. It caused quite a ruckus.”
And then it occurred to me that perhaps the judicial opinions I write are strikingly similar to the form letters I detest and may be just as boring. So who was I to criticize well-meaning people who had included me as a recipient of their insipid form letters. I needed a straight answer, and so I decided to call a friend who was not shy about voicing his opinions on any subject under the sun including holiday cards, form letters, my spoken and written opinions, and even my columns. From him I would not receive solace, but uncompromising honesty. What else could I expect from one who had authored a trilogy of short novels entitled, “I Love You, I Hate You, Drop Dead.”
But the day after my birthday, I, and the rest of the world suffered a devastating loss. The friend I was about to call, the legendary Artie Shaw, had passed away. I was fortunate to have known Artie for the past 15 years and his insistence on perfection strongly influenced me. But Artie was a genius to whom perfection was no stranger. To me, genius and perfection are aliens, more mystifying than the Bush twins. But to him, who no doubt was the finest clarinetist of all time, perfection was a constant yet nagging companion. This was one marriage that lasted to the end.
He was an expert in just about everything. The upstairs of his home in Newbury Park was a scaled down version of the New York Public Library. You could divide the library up into departments, the sciences, including quantum mechanics, and astrophysics, history, philosophy from the pre Socratics to the 20th Century, painting and sculpture, and literature. Yes, he read every damn one of those books at least a couple of times and remembered everything he read. He once asked me who, not what I was reading. I said, “Proust.” He then launched into an exegesis on “Swanns Way.” He refused to take credit for his ability to recall everything he read. “I was born with a photographic memory,” he said. “Therefore I don’t get the credit.” “Do you get credit for understanding all that you have read” I asked? That question elicited a smile.
So I have been forced to ponder the dilemma of judicial opinions and form letters alone, yet I can imagine Artie's analysis. He would point out their similarities. They are written for a large audience, not just the litigants. They seek to elucidate points that are presumably of interest to a wide, albeit limited audience. Judicial opinions that are poorly organized and dwell on facts that do not define the legal principle at issue are more like the form letters that ramble, and at best have limited interest.
I can hear Artie pointing out to me that this is entirely avoidable. One merely has to take the time and commit to writing an opinion that is clear and readable, something of interest to the reader. And the same advice can be given to the writer of an appellant’s or respondent’s brief, or the writer of a form letter. No one cares about the muskrat dropped in Sparky’s bed, especially Sparky, a 17 year old line backer on his high school football team, who with fervor wishes his mother hadn’t written about the muskrat incident. His grandmother loves the story.
But what of the case where there is widespread interest. The obligation to be clear about what you wish to tell your audience is all the more essential. Take for example, U.S. v Booker, 2005 DJDAR 410 (U.S. Jan. 12, 2005) the United States Supreme Court decision that invalidates the Federal Sentencing guidelines—I guess. Booker tells us that the guidelines are unconstitutional but courts still have the discretion to use them. Hmmm.
Artie would have disapproved. The ruling leaves much to ponder. Does not Apprendi v. New Jersey, 530 US 466 (2000) and United States v. Blakely 124 S.Ct.2531 (2004) hold that facts that increase a sentence must be decided by a jury? No stranger to litigation, Artie said, “If you are a judge making important decisions, people ought to know what the hell you are talking about.”
Whether writing a form letter, a brief , an opinion, or engaging in an worthwhile endeavor (that should exclude columns), Artie's advice applies; "Good enough is not good enough." Printed in the program prepared for his memorial service was a poem dedicated to him by his friend, A.C. Greene, the poet, not the basketball player. It is titled, "The Soul Of The Song." It speaks to the mission of the artist, but however limited may be our own talents, it offers insight for those who believe that "good enough is not good enough." It reads:
He taught the clarinet to think
Not just to sing.
To explore the music it was making.
To let the fingers probe and find
The hidden places,
The crevices of meaning and emotion.
A good song has---------
But must be found and captured
By some divinity or other,
A melody that cannot just be played,
Can't be chartered,
The secret tempos and their keys
Can only be discovered
By a mind that is listening for the soul
The manuscript does not display.

Words Come Back to Haunt

Many people fondly remember our late Senator S.I. Hayakawa, memories that do not concern any significant legislation. Some remember him as the courageous president who took on the rioting students at San Francisco State College in the tumultuous 60’s. I still remember that photo of him standing on the hood of a Chevy, or whatever, tam-o-shanter firmly in place on his head, bullhorn in hand, shouting down a throng, or a mob, of revolutionary spirits, or spoiled brats, depending on your point of view. Others remember him for his recreational tap dancing, his association with Duke Ellington, or his penchant for snoozing during Senate debates. I warmly remember Hayakawa for two things, his quotes: “If students are dirty and ragged it indicates they are not interested in tidying up their intellects either,” and my favorite, “I’m going to speak my mind because I have nothing to lose,” and his book, “Language in Thought and Action, ” or as I called it, “Semantics for Dummies.” Hayakawa was a lot easier to read than Korzbyski or Wittgenstein. As I recall, a pervading theme in Hayakawa’s book is that the word is not the thing. I agree with that notion which has become suspect in this day and age. Indeed, as I have urged on this page before, a word is only a sound or a squiggle on a page. Yet words are the products of pens, or word processors, and we all know how mighty they can be. Wittgenstein, you may recall, had a lot to say about a box of matches. This following anecdote may be apocryphal but it makes the point. He is reputed to have held up a box of matches in front of his class and asked the students what he was holding. They said “a box of matches.” He flung the matches at them and yelled, “No! A box of matches is a sound.”
But sounds or mere squiggles on a page can cause much havoc. Just ask Salmon Rushdie. Or for that matter ask any judge. We say and write things that have been known to create riots, anguish, elation, anger, and boredom. The simple word “reversed” has sent people over the edge.
We had better be careful not just in choosing our words, but in making sure the words we choose are our words. Take for example, the case of two distinguished Harvard law professors, Charles J. Ogletree, Jr., and Laurence Tribe. As reported in the New York Times a few weeks ago, six paragraphs in Ogletree’s recent book “All Deliberate Speed” were not written by Ogletree, but by a law professor from Yale. The six paragraphs lacked quotes and nary a footnote showing that they belonged to the Yale law professor. And portions of Tribe’s book “God Save This Honorable Court” published in 1985 borrowed from another professor’s work as revealed by identical and similar wording without attribution. Hurried and sloppy research, not malicious intent, contributed to these transgressions.
That these were accidents occurring through the carelessness of research assistants does not excuse the professors. Whether you agree or not with the philosophy of these two legal titans, they are first-rate scholars who face eviction from their airy quarters on Mount Olympus. I appeared once on a panel moderated by Professor Ogletree and was impressed by his brilliance and compelling personality. If this could happen to him, it could happen to me, and I don’t even live anywhere near Mount Olympus. I was once accused of trying to live there, but the agent refused to even show me a condo on the outskirts. I think the neighborhood petition opposing my setting foot anywhere in the district scared her off. I threatened to sue the agent for discrimination. She convinced me her demurrer would be sustained without leave to amend. But that is another story for another time.
I immediately called in my research attorneys to make sure we had not accidentally written something written by others for which we did not give proper attribution. After exhaustive investigation, we did come across something. In one of my early, very early opinions, I had written this concluding sentence: “Judgment is reversed and the matter remanded with directions to adopt procedures consistent with the views expressed herein in this opinion.” That was out and out plagiarism. I will never use it again. The author has not sued me. He didn’t want to be known.
Another factor crucial to any writer, whether he or she plagiarizes or not, is style. It has to be important because Strunk and White titled their book “The Elements of Style.” The final Chapter V is devoted to this most important element. Tone, an element if you will of style, is essential to any writer. For example, an officious or patronizing tone in an appellate opinion detracts rather than enhances.
In my October column I wrote about my cat’s misbehavior in the living room. At the end of the first paragraph I referred to a word in a familiar colloquial phrase with dashes. My editors at the Daily Journal saw it differently and decided not to bleep out the word. We didn’t have time to confer, and there it was. I thought the use of the word was jarring and not in keeping with the tone of the article. Some readers of the column voiced similar sentiments while others support the use of what I call the “offending” word. I will admit to a heightened aversion to scatology, but I am anything but a prude, much less a censor. It is simply not always appropriate to be blunt in the name of freedom of expression. This has nothing to do with censorship or a reticence to offend people when they need to be shaken from their apathy. Daily Journal columnist Garry Abrams decried the pusillanimity of network television afraid to air the movie “Saving Private Ryan” because of concern about a four letter word uttered by soldiers landing at Normandy. As usual he was right on. The tone there was appropriate. What would soldiers in such a circumstance say, “Goodness Gracious”?
I thought the whole affair over my word had blown over when I was compelled to write the offending word in my November column. Well, it is not exactly the same word although it sounds the same. It all came about when this stranger sat down next to me at Starbucks. He tripped and spilled some of his coffee latte on his hands and what looked like a deposition or an appellate brief. Upon spilling the coffee, he used the quaint expression “Shoot!”
I couldn’t help myself. I had to say something. It must have come from subconscious anxiety over the October column. “Shoot?” I asked as he sat down beside me with his head slightly cocked. After an awkward pause I said, “Do you want to shoot the shit?”
“Sure, ” he said.
“You said ‘shoot’ not shit,” I said.
He nodded.
“Shoot is so quaint,” I said, “like a line from the Ozzie and Harriett show. Let me guess why you said 'shoot' instead of 'shit.'"
“Shoot,” he said.
“I bet you are a deeply religious person and offended as I am from the indiscriminate use today of scatological expressions.”
“No,” he replied, “I am an agnostic.”
“Well, I suppose agnostics can be prigs,” I said meekly.
“They can, but I am not a prig,” he said.
“But ‘shoot?’” I protested.
The conversation was over. He got up to leave. It suddenly hit me that he looked familiar.
“Don’t I know you?" I asked.
He was standing. “No," he said patiently, “you don’t know me.”
“What is your name?” I asked.
“Jack,” he said. “Jack Shitt.”

What's Behind a Name?

What was a great present for a bright kid in 1953? A Gilbert chemistry set. My name happened to be Gilbert. It still is. When I was in high school, everyone thought I would be a wiz in chemistry. That’s how stupid people were in those days. Thank God my name was not Einstein. Is Ernest Hemingway’s brother, the accountant, a brilliant novelist? I proved everyone wrong when I took high school chemistry and coined the phrase, “Worse Things Through Chemistry,” in defiance of DuPont’s slogan which defined chemistry as the road to Shangrila. DuPont labs manufactured napalm used in the Vietnam War. In 1996 Fatboy Slim made an album entitled “Better Things Through Chemistry.” One of the tunes was called “Next to Nothing." That’s what I knew about chemistry. I was a total klutz in the lab. One day I mixed the wrong chemicals. The explosion was not all that powerful. No one was hurt. I received minor burns on my arms. The ointment helped. Within a week the scars had cleared up. The teacher was sympathetic. I passed the course. In college, chemistry was a prerequisite for medical school. That’s why I opted for law school, thereby saving the lives of innumerable potential patients and avoiding being sued in medical malpractice suits.
My name created further difficulties for me in law school. The less astute students thought I had authored the Gilbert Law School Outlines. Professors held the Gilbert outlines in contempt and saw them as the counterpart to Classic Comics in literature classes. But then not many of my law professors seemed to know much about literature. The more malevolent law professors would call on me in class, prefacing a convoluted question with, “Kindly enlighten us, Mr. Gilbert, with an outline to the solution to this apparent conundrum.” I didn’t have the solution. The chemistry just wasn’t right.
We give names much importance, but a name is merely a sound or a squiggle on a page. It should not be confused with the actual thing. Call a weed a rose, it still won’t have the fragrance. Just ask Shakespeare. Jude Law is an actor, not a lawyer. I bet he doesn’t have the slightest idea how to draft a living trust. That our birthdays fall on the same day has no significance. Sometimes names get close to the mark. Take Michael P. Judge, for example, the Los Angeles County Public Defender. His office represents the poor and the disadvantaged charged with criminal offenses. Although not deciding cases as a judge, he and his deputies pursue justice for their clients. Judges dispense justice, don’t they? So there is a connection. But if he should ever become a judge, that is, if there should ever be a governor who will appoint a criminal defense attorney to the bench, he would be known as Judge Judge. Sometime ago a state senator sought to change his first name to senator. It is rumored that his favorite dish was mahi mahi. My computer thinks these are spelling errors.
Judge Minor Wisdom, the courageous judge of the 5th Circuit Court of Appeals who protected and guarded civil rights and steadfastly implemented Brown v. Board of Education was anything but minor, and in all respects wise. There the name worked. The same with Judge Learned Hand, one of the most learned jurists of our century. Can’t say the same about Judge Learned Foot, who has appeared in this column on many occasions. He often steps into trouble. I met a man whose last name was Cool. He would have made a Cool Judge.
But names conjure up images that can enhance or detract depending on our goals. Some of the candidates running for judicial office refer to themselves as “criminal prosecutor.” They no doubt believe that such designation resonates better with voters than the simple “prosecutor." I wonder if the voters know that these “criminal prosecutors” cannot be prosecutors on the bench. A plaintiff’s personal injury lawyer I know wants to run for judge as a “civil prosecutor.” Many years ago I knew a judge who was up for reelection. She drew a challenger. The judge designated herself “incumbent” on the ballot statement. That was the kiss of death. She might as well have called herself “criminal defense attorney.” She lost.
Going further back in time when women judges were a rarity, a judge named Nancy changed her first name to Noel, which apparently won her the male chauvinist vote. And in other ways she copied men. Xaivier Cugat, the famous Latin band leader of the 1940’s, led the orchestra in sambas and mambos with a Chihuahua nestled in his arms. The judge conducted her trials with a Chihuahua nestled in her arm. That was a bad idea. The Chihuahua was a tough sentencer. He has taken issue with a recent 9th Circuit Court of Appeals case, Cetacean Community v. Bush (9th Cir. 2004) 2004 WL 2348373, which holds that the “Cetacean Community,” the world’s whale, porpoise and dolphin population, does not have standing to sue over the Navy’s use of sonar to detect “quiet submarines" at long range. The high strung Chihuahua with a strong aversion to water nevertheless felt a kinship to the laid back cetaceans because “we are all mammals.”
Titles and names mean nothing. The title “Judge,” for instance, carries little weight. Many, many years ago (the statute of limitations has run), I called a popular restaurant to make reservations. I wanted a good table, so I told the person on the phone that I was Judge Gilbert. He made the reservation for Judd Gilbert. I performed a wedding ceremony and at the conclusion pronounced the couple married by virtue of the authority vested in me as a justice on the Court of Appeal. During the toast to the newly married couple, a well known actor referred to me as the “Justice of the Peace.” I would just as soon not use the title. But “retired” judges who become active private judges want to be known and introduced as judges. For some reason you will find them in abundance at bar functions they rarely attended in their pre-retirement days. And those who were not the most congenial bench officers have suddenly learned to smile and be ingratiating with members of the bar.
Names and titles are deceiving. I know someone named Small who is 6 feet tall. I know someone named Short and he is short. There is even someone named Jack Schitt. I don’t know him.
We should all do and be our best and forget about our names and titles. They say nothing about who we are. This is particularly true for judges. The best appellations a judge can carry are “fair,” “objective” and “unbiased,” for example. Because they must be earned, they are the ones that count.
As for me, no need to call me “your honor." Like the Chihuahua, I favor the cetaceans. Call me Gilbert.

Cats and People Have No Shame

The other day Boz, my cat, "took a giant dump" on the living room rug. (The colloquial expression in quotes puzzles me. He did not take anything. It is what he left that disturbed me.) I was stunned by this act of betrayal. We have a box in the house filled with unsullied litter for emergencies. Up until the living room incident, Boz had displayed his perversity in less dramatic ways. He does not limit use of the box to emergencies. Better to interrupt his outdoor activities (lengthy siesta is included here as an activity) to pop in the house for a quick visit to the box. Following completion of the task, he makes perfunctory motions at clean up, rarely accomplishing what I, but apparently not he, consider a thorough job. In the naïve belief that his inattention to details reflects negligence instead of malice, I did not reprimand him. But the living room episode I could not ignore. My disappointment over his unseemly behavior demanded a confrontation. I called Boz into the living room where evidence of the deed was neatly piled in a corner but plainly visible from every part of the living room. “Boz, how could you do this?” I asked. Before he could reply I said, “Bad cat, naughty animal, shame, shame, shame on you.” His head was moving up and down, but not in agreement with my assessment of his unbecoming behavior. He was licking himself. It was then that the epiphany struck me like a thunderbolt. He felt no shame. He didn’t care, or to be colloquial again, "he didn’t give a ****."
In the old days people could endure just about anything but shame. If you felt ashamed it would be unbearable to look others in the eye. That’s why Oedipus switched to Braille. His “shameful” act has become a popular expression of derision, more frequently used by those who have never heard of Sophocles. Like substantial evidence questions, the expression occurs with “rhythmic regularity” in the transcripts of criminal cases.
Attitudes about shame today are different. If I had made my cat wear a sign around his neck that says, “Shame on Me, I pooped in the living room,” I doubt that he would have cared, provided the sign did not hamper his movement. That he does not read is beside the point. No one reads these days. But the more pertinent question is: Does anyone feel shame nowadays? If “reality” shows are an indication, the answer is obvious. People eat live bugs and snails, reveal their most vulgar traits, plot against their friends, have sex with strangers, and suffer innumerable humiliations witnessed by millions of enthusiastic viewers. If Hester Prynne were here, she would be doing commercials for the Auto Club.
At first blush (does anyone blush anymore?), shame appears to be an anachronism. But if that is so, why are courts meting out shameful sentences, I mean sentences designed to shame defendants?
In United States v. Gementera 379 F.3d 596 (2004) defendant who had stolen mail was ordered to stand in front of a post office for a day wearing a sandwich board sign that said, "I stole mail. This is my punishment" as part of his sentence. At trial Gementera seemed content with the sentence. On appeal, however, he argued the sentence was not legitimate. It violated contemporary standards of decency and humiliated him. The 9th Circuit saw it differently and affirmed the sentence. The majority acknowledged that the sign condition likely will cause Gementera humiliation or shame, but the condition is reasonably related to rehabilitation, a goal of the federal Sentencing Reform Act. I wonder whether defendant Gementera thought his pilfering letters violated contemporary standards of decency.
In Demery v. Arpaio 378 F3d 1020 (2004) the sheriff used "web cams" to stream live images on the Internet of pretrial detainees in county jail. The 9th Circuit affirmed the district court's grant of a preliminary injunction prohibiting this practice. The appellate court failed to see how turning pretrial detainees into unwilling objects of the latest reality show served any legitimate goal. The practice amounted to unlawful punishment of pretrial detainees. There were dissents in both Gementera and Demery proving that notions of justice can depend on perception and the right panel. Getting back to Boz, my cat, I require him to wear a collar with a bell. He protests that wearing the collar is humiliating and has filed for injunctive relief. I plan to argue that the bell serves a lofty purpose. It gives unsuspecting birds and mice a warning. It is doubtful the Demery court will uphold the constitutionality of the warning bell. The court might acknowledge that the warning bell could save a bird or two, but it could buy into Boz's argument that he is being shamed for a crime he has not even committed. His case is therefore even stronger than that of the pretrial detainees who at least had been arrested for crimes they were accused of committing. True, but I would argue that although Boz is allegedly shamed for a crime he did not yet commit, we can take judicial notice that he most certainly would commit the crime if given the chance. Although I cannot predict how the court will rule, I am confident it will unanimously uphold the use of the bell when it comes to mice. I cannot speak to the court's rationale, but I know it will find a way.
If shame is an anachronism, why did Gementera and Arpaio appeal? I think it is because there is a world of difference between choosing to parade one's shameful acts to a jaded public, and quite another to be forced to be shamed in a manner decided by someone else. That can be excruciating. Candid lawyers with unrepressed memories will not forget the humiliating sting inflicted by scornful law professors calling on them with relentless questions for which there were no satisfactory answers. “Shame on the professors,” I thought. But were my indictment shouted from the rooftops it would at best have prompted a yawn.
There is no question that shame can be devastating when one’s humiliating act is revealed by others. This happened to me even when I was out of law school and working as a young deputy city attorney. At the time I was trying innumerable “drunk driving” cases. Each morning before court convened, I would stand in the master calendar court and call out the names of the people’s witnesses subpoenaed to appear that day. The courtroom was usually filled with police officers, defense attorneys, defendants and witnesses. One person’s name appeared on many cases, but he was never there. Day after day I would call out his name loud and clear, “Sid Chemist,” (last name pronounced kem-ēast). Police officers invariably cracked up when I called the name of this flakey witness who never showed. My frustration with Sid Chemist was written up in the Police Gazette. That was when I learned that Sid Chemist was the Scientific Investigation Division Chemist who was on call to testify, if needed, to explain the workings of the gas chromatograph intoximeter. Please keep this embarrassing story to yourself. But judges should be wary of imposing shameful sentences, I mean shaming sentences. One California judge since retired, ordered a beer thief to wear for one year a T-shirt on which was boldly written, "I am on felony probation," and "My record plus two six packs equals four years." The Court of Appeal in People v. Hackler 13 Cal.App. 4th 1049 (1993) disallowed the order reasoning that the T-shirt just might not favorably impress prospective employers, thus defeating defendant's rehabilitation. In another case, unpublished, the same judge sentenced a woman convicted of beating her children, to wear a contraceptive Norplant device as a condition of probation. The case caused an outcry from civil liberties groups. I was curious to know what Boz thought about the case. To give him a balanced view, I presented the judge’s rationale for the sentence. The defendant was a drug addict and already had five children taken away from her. The judge was merely trying to protect a child not yet conceived from brutality and neglect. I asked Boz what he thought about the probation condition. He jumped out of my lap. I heard him scratching away in his box.

The Witness Lied-I Think

What you hear the trial judge say at the conclusion of the witness’s testimony: “Thank you. You may step down.” What you would hear if the judge gave voice to the raging thoughts he tied to a post in his mind: “You lying piece of offal.” The judge ultimately enters judgment against the party for whom the witness testified. On appeal the appellate court affirms the judgment because substantial evidence supports it. The trial judge has said nothing about witness credibility, but that doesn’t matter. The appellate court relies on the trial judge’s implied findings that he did not believe the witness. The trial judge’s thoughts can now be safely unleashed from their tether to frolic at will.
Trial judges have enormous power. I once was a trial court judge, so I know. Their findings on credibility are given great deference by appellate courts. Trial judges instinctively know a liar when they see and hear one on the witness stand. Similarly they have an unerring sense of when a witness is truthful and forthright. From where do they get this superhuman power? There is no such course offered at the Judges College. A few years ago a judicial education program offered a course purporting to teach one how to tell whether a witness is lying. The course was cancelled, however, when my wife decided she was too busy to teach it.
Up until recently I gave little thought to credibility findings. When I was invited to speak to a group of Administrative Law Judges (A.L.J's) about credibility findings, I accepted on condition that no one eat turkey for 24 hours prior to my talk. L tryptophan would not enhance audience attention to this seemingly dull topic.
In fact, the topic was not dreary. It prompted me to question how judges in fact judge credibility. How do we know whether someone is telling the truth or lying? Sometimes we just know it in our gut. There is that ineffable quality that exudes from some people and forms these words encased in a bubble over their heads, "I am a sleazy scum bag for whom the truth is as welcome as West Nile virus." But who knows whether the trial judge has it right? Certainly not appellate justices. I suppose in rare cases an appellate judge might question credibility findings, when, for example, a trial judge credits the testimony of Stevie Wonder and George Shearing, each of whom swear they saw plaintiff stumble on the curb and hold his ankle in pain .
But what would happen if trial judges had to document their credibility findings based solely on demeanor? How would they articulate such findings for a reviewing court? I broke out in a cold sweat at the thought. But no judge has to do this, right? Wrong. No one except . . . Administrative law judges. They make important decisions that have a profound effect on the public and on the lives of the parties appearing before them. They adjudicate a plethora of decisions made by state and local governmental agencies. These decisions concern, among other things, professional and vocational licensing, professional and employee discipline, payment of disability and retirement benefits, and land use issues. They write their own detailed decisions stating their findings. And of course they routinely make decisions based on the credibility of witnesses. On writs of administrative mandamus heard by the superior court, are credibility findings of the ALJ entitled to deference? In many cases the answer is yes, but it comes with a price.
Government Code section 11425.50 (a) requires ALJ's to write a statement of the factual and legal basis for their decisions. And when their decisions include a determination based substantially on witness credibility, 11425.50 (b) provides that the ALJ's written "statement shall identify any specific evidence of the observed demeanor, manner, or attitude of the witness that supports the determination." And to show how valued these findings are, section (b) goes on to tell courts they must give "great weight" to these credibility findings. California Youth Authority v. State Personnel Bd. 104 Cal.App.4th 575 at p. 588 (2002) citing the Law Revision Commission's comments to section 11425.50 (b) concludes that the ALJ 's credibility findings are not entitled to great weight unless the determination derives from the judge's observation of the demeanor, manner or attitude of the witness.
So, to get deference, the ALJ has to identify or describe what it is about the witness that leads to the conclusion of truthfulness or prevarication. I thought back on the innumerable cases I had heard as a trial judge when I was certain a witness or two lied through his or her teeth. I have not forgotten the testimony of an expert statistician. Lies and damned lies paled in comparison to his statistics. If I had been an ALJ I would have gotten no deference on that one because my determination was not based on his demeanor, attitude or manner. But what if it had been? How does one go about describing why a witness is a lying S.O.B? Does this not involve a creative recitation of the judge’s perceptions, something not reflected in the record? With great empathy for the ALJ's, I tried to fashion credibility findings from another case I had heard when I was a trial judge.
“The witness was perched on the edge of his chair like a trapped condor hoping for an updraft to carry him away. Tiny beads of sweat formed on his forehead like drops of condensation inside an old refrigerator. As the noose of cross-examination tightened around his neck he blurted out an answer that sounded like a scream. His wild eyes bulged as tentacles of terror closed round his heart. I have noted the witness’s nervous twitches and discomfort. In my view the witness is . . . .” The witness is what, a liar or highly credible?
Could not either conclusion apply? A nervous and fidgety witness may simply be exhibiting discomfort in a courtroom where he is the center of attention. His uneasiness may have nothing to do with his truthfulness. The witness who hesitates and stammers may be searching for the truth as opposed to the cool and collected witness whose pat answer is a packaged lie.
Identifying aspects of credibility can be particularly dicey in novel cases, say, for example, when someone sues himself. That is what happened in Lodi v. Lodi 173 Cal.App.3d 628 (1985) a case written by a distinguished jurist, Justice Richard Sims, who coincidentally also authored CYA v. Henderson. If Dickens had written about the Lodi case he might have titled his novel, “The Best of Times—The Worst of Times.” Lodi's complaint alleges that he, Lodi, as a defendant is the beneficiary of a charitable trust, the estate of which should revert to him, Lodi, the plaintiff. Apparently plaintiff and defendant could not agree to settle the matter. Defendant Lodi was served but failed to answer. Plaintiff Lodi sought a default judgment. The trial court's dismissal of Lodi's complaint was affirmed by Justice Sims and his colleagues. Justice Sims with characteristic insight noted the even handed application of justice accorded Lodi. True, Lodi lost, but he also won. Driven by unwavering rectitude, Justice Sims ordered each party to bear his own costs. It is rumored that after the decision the Lodis reconciled, made dinner at home and watched a movie on television, “The Three Faces of Eve.”
I shudder to think what would have happened if the Lodis had gone to trial. I can envision plaintiff and defendant Lodi, each telling his respective lawyer to “sue the bastard” and show no mercy. No doubt discovery would have been an ordeal, but the trial would have been a nightmare. Imagine the difficulties facing the trier of fact if he or she had to identify credibility findings. What if the judge believed Lodi, but disbelieved Lodi? The findings might read as follows: “Plaintiff Lodi was the only credible witness. His answers to defendant Lodi’s convoluted questions were forthright. Lodi was patient and reserved. In contrast, Lodi was fretful, evasive, and hostile. He refused to look Lodi in the eye, slumped in the witness chair and stammered when answering the most simple questions. For Lodi, the truth is a pendulum, which under Lodi’s careful cross examination, sliced Lodi’s lies in half.”
Credibility findings whether articulated or not can have serious repercussions. About 35 years ago, a Municipal Court Judge sitting in traffic court found his wife guilty of speeding. After rejecting her defense before a packed court room, he questioned her veracity, lectured her on traffic safety, and fined her $100. Before calling the next case, he said,"see you at home for dinner, honey.” I have been unable to verify the rumor that he was hospitalized that evening for ptomaine poisoning.
It occurred to me the other night while listening to Fred Astair’s version of Gershwin’s “Anything Goes,” that sooner or later there will be a case where a judge appears before himself. I would hate to appear before me. I am tough on myself and put little stock in my credibility. I would no doubt impose a heavy sentence on me, and this is in a civil case. In a criminal case, I would definitely file an affidavit of prejudice.
For the time being, trial judges do not appear before themselves. Nor are they required to do the heavy lifting required of Administrative Law Judges and explain credibility findings on witness demeanor to get deference from higher courts. But I no longer feel sorry for Administrative Law Judges. I have heard that many supplement their income by selling the movie rights to their credibility findings.

Judges Should be Seen-Not Heard

In the Victorian age, when I was a child, a popular grown-up adage was “children should be seen and not heard.” That’s not easy for kids. It is unsettling going down a slide with your mouth open in a silent scream. The behavior of kids today proves that the rule has been repealed with a vengeance. That is why I favor enacting a new rule that takes the old one even further: “Children should not be seen, heard nor had.” Why such a draconian measure? Just look around you: brains, noses, and tongues all pierced, blue hair, tattoos of Dante’s inferno adorning parts of the body one should only see in the National Geographic.
When I am in a restaurant and approached by someone wearing a ring in her nose who says, “Hi, I’m Debbie your server,” I go back to my prehistoric roots and invariably order body parts: liver, brains, tongues, legs or ribs, none of which are good for you.
But my rule would not be enforced today. That is because kids have rights. They sue their schools, their parents, their baby sitters and their coaches. But with rights also comes an occasional burden. Some kids have been sued by record companies for instance.
A variation of the rule that no longer applies to kids does apply to Judges. It is an unwritten rule of survival, “Judges should be seen and not heard . . . except for the occasional ‘denied,’ and ‘sustained.’” Judges who violate the rule are dealt with harshly, except Justice Scalia, but not the rest of us. Take the redoubtable Federal District Judge, Penfield Jackson, who a few years ago tried the Microsoft anti-trust case. He violated the rule. For him the consequences were catastrophic.
Jackson gave secret press interviews about the case while it was pending. The interviews were later published in leading newspapers and magazines. All that publicity was heady until the Court of Appeals reversed him in a 72 page opinion. (See U.S. v Microsoft Corp. 253 F3d 34 (2001).). It was bad enough being reversed for errors of law. But the nightmare came in part VI of the opinion where the appellate court excoriated Judge Jackson for creating the appearance of partiality. Perhaps his scathing denunciations of Bill Gates and Microsoft had something to do with it.
The appellate court berated the judge for “posturing for posterity” by “trying to please reporters with colorful analogies and observations.” The per curium opinion disqualified the judge from further participation in the case for his “deliberate, repeated, egregious and flagrant” violations of the Code of Conduct for United States Judges. If only Judge Jackson had had before him on the bench this captivating sentence, “Katherine your beauty melts snow.” Behind its charming simplicity is a powerful mnemonic to remind judges of a cardinal rule--“Keep Your Big Mouth Shut.”
The judge who hears what is called a publicity case is not the celebrity. The judge is simply a referee making sure the parties are getting a fair trial. The case may be difficult and “trying” in every sense of the term, but the judge is nobody special just because he or she happens to be trying the case. But what of judges who think they have something to say, or some talent to display? Should they hang from the bars of the jungle gym with their lips sealed? Maybe not.
The Russian composer Shostakovich composed symphonies that mocked Stalin and the Soviet regime and he survived. Similarly judges off the bench can creatively express themselves and survive provided they do it with circumspection. My colleague Justice William Bedsworth writes a humorous column called “A Criminal Waste of Time.” He says his column is a safety valve that allows him “to get it out of his system.” It’s different with me. If anything, my columns' safety valve has made my life more dangerous.
If anyone wants to read some of the 140 columns I have written for the Daily Journal they can access them on my blog site, http://www.gilbertsubmits.blogspot.com.
I have gotten some hits, but no home runs.
Some judges play musical instruments in public. “Gavel to Gavel,” the Los Angeles Superior Court Judicial Magazine, shows on its cover five judges in their robes playing their instruments. Judges Aviva Bobb, Mary Thornton House, and Helen Bendix make up the violin string section, Richard Denner, on classical guitar, and Brett Klein on trumpet. My colleague Justice Steven Perren appears in musicals and sings and dances, well mostly sings, on the stage in front of people. His performances at oral argument are legendary. I play the piano, but am loath to do much playing in public because of the Judicial Canon which admonishes judges not to do anything that would reflect poorly on the judiciary. The musician judges seem to feel there is a connection between music and judging. I agree- lots of room for improvisation.
The proliferation of rules about what judges can and cannot do has created anxiety about what is appropriate behavior off the bench. At lunch the other day a colleague was concerned about whether she should order melon out of season. I opined that it would be O.K. for an appellate judge but could be dicey for a trial judge. “No,” my colleague answered, “I mean would this lapse in judgment reflect poorly on the judiciary and possibly get me in trouble with . . . ” I interrupted, “you mean . . . .” “Yes,” she whispered, her face ashen.
It was unnecessary to say more. Judges seldom talk in public about the agency that strikes fear in their hearts, the dread Commission On Judicial Performance. This is the agency that has resisted with iron tenacity the right of discovery for judges charged with misconduct. But judges can relax. The Commission that did not want judges to receive the due process safeguards accorded Saddam Hussein, relented and agreed not to oppose a rule that would give judges some discovery rights.
This takes me to my recent public performance off the bench. Please do not relate this to the Judicial Performance Commission. Once a month, writers, actors, and marginal people like myself with a story to tell, read before an audience at the Powerhouse Theater in Santa Monica. The Powerhouse is not named after a candy bar as I thought, but used to be a power station. The stories revolve around a theme. I read a story at the Powerhouse theater a few months ago, a good portion of which I had lifted from my Daily Journal Column of May 2004 on the L.A. Marathon. The theme was “Truth and Dare.” I misread the title.
I thought it was “Truth or Dare,” the title of a 1991 documentary film in black and white that chronicled Madonna’s “Blonde Ambition” tour where she firmly established her credentials as the nation’s preeminent bearable talent of the decade. She plays the game “Truth or Dare” while sprawled on a gargantuan bed with an entourage of her dancers, who like a pride of priapic pampered persnickety Pomeranians, perversely pant and plead for paltry portions of preferential penance. At the rehearsal the directors thought my penchant for alliteration detracted from my story and cut it out, including the bit about Madonna. One of the producers is just wild about Madonna.
The Daily Journal was going to cover the show and my performance. The editor herself, Katrina Dewey, was going to come, but then decided it was a good night to do her laundry. It was just as well. I had talked to Judge Scalia before I went on and he told me to confiscate any one who tried to tape my reading. I asked if he had misspoken and meant for me to confiscate the tape recorder. “That too,” he replied. So as far as I know, there is not a tape of my performance floating around for the Judicial Performance Commission to gloat over. But not to worry. If there is such a tape, the new discovery rule might give me a chance to hear it before the hearing.
I do not believe that my extra curricular activity at the Powerhouse reflected poorly on the judiciary. How could it? No one knew I was a judge, except my wife, who, at the cast party denied she had ever seen me before. And as for the people who didn’t applaud at the conclusion of my performance, I am pretty sure I can rule on their cases with complete impartiality.