What's in a Name? Everything.

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

THE FORGETFUL TOURIST

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

TAKING IT PERSONALLY

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

A Good Limerick is an Oxymoron

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

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

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

Guiseppina Strepponi

Loved Verdi and spumoni,

Was his lover, not a crony,

His muse, his rigatoni.

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

There once was a crook named Jones,

He got all his funds through loans,

His life was once sunny

When he took plaintiff’s money,

This judgment will make him atone.

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

Take for example California Penal Code section 1203 from which I tried to wrest some sense in People v. Holt, 226 Cal.App.3d 962, 966 (1999.) The first paragraph of the statute reads: "If any defendant who has been released on probation is committed to a prison in this state or another state for another offense, the court which released him or her on probation shall have jurisdiction to impose sentence, if no sentence has been imposed for the offense for which he or she was granted probation . . . . " So far it makes sense, but then it goes on and on to say "in the absence of the defendant, on the request of the defendant made through his or her counsel, or for himself etc." This one sentence continues with its meandering clauses to a 177 word confusing finish. Sentences in the statute's remaining four paragraphs are not any better.

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

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

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

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

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

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

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

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

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

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

There once was a poet named Frost

Who claimed, in poor rhyme, he was lost

But those in the know

Could with ease clearly show

Both his syntax and purpose were crossed.

He admitted both paths were the same.

At the time no clear difference could he name.

But with hindsight he poses

We should laud him with roses

For a bravery of choice he would claim.

In summation, his effort is clear.

To engender a motive to cheer.

But the choice made that day

In an offhanded way

Was by a traveler who never knew fear.

"Judgment for Defendant."

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

There once was a poet named Frost.

Who stood before two roads that crossed.

He looked at the first,

And thought it the worst,

Took the other and got himself lost.

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

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

There once was a judge not so solemn.

His opinion solved many a problem.

He often told jokes,

To all the good folks.

But limericks he saved for his column.

HaveI Couldn’t Done It Alone- Only I’ll take the Credit.

Credit. I’m no different than anyone else. I take it whenever I can. But it makes me anxious. Credit, no matter what type, has its downside. Just ask those struggling to make mortgage payments.

Politicians take credit for their speeches—particularly the ones that go over well. Never mind that seldom do they write their own. In fact, everyone knows they have “speech writers.” Nevertheless, if the speech bombs, the politician, not the speech writer gets the “credit.” Think “nattering nabobs of negativism” was the product of Vice-President Spiro Agnew’s creative mind? (Does anyone remember Spiro Agnew? He was convicted of tax evasion and money laundering.) The credit for the alliteration belongs to William Safire. But Agnew got the “credit” for the remark. Had he gone to prison he may have also gotten credits for good time.

Historians usually write their own books, but not every word on the page always comes from their pen. Some of the few who have become “popular” are so busy cranking out books that they rely on research assistants to draft a paragraph or two, or maybe even a chapter. A brilliant or incisive paragraph earns credit for the historian and continuing employment for the research assistant. But when the assistant gets it wrong, or plagiarizes from another work, the historian is discredited.

This takes me to the “Hollywood writers” strike in the news these days. Can you believe it? The late night comedians rely on writers to pen their witty lines. Imagine, they get laughs for jokes created by faceless writers. Where are they without their writers?

Without a good writer, a comedian can fall on his or her face. Assume a late night host starts out with a joke. “A dog, a parrot and a moose go into a bar.” Then what? How would he finish the joke without a writer? The bartender says, “So what’s the joke?” That is the joke. Get it? If you are asking the same question as the bartender, that means you did not get the joke. But someone has to write the joke, the whole joke, not just half the joke. No writer, no joke. But the “joke” about the dog, parrot and moose that not everyone got had to be written. We would not be having this discussion had the joke not been written. No matter that it would have been better if the joke had not been written in the first place.

What is a joke is the way judges are treated. We judges often get the blame for society’s ills. We are accused of coddling criminals or denying justice, over protecting or under protecting the environment, favoring or being hostile to business or workers.

I suppose that is why it is important for us to take credit now and then. We will gladly take credit for a decision that earns praise. But like the late night comedians, we do not always write every word of a decision or opinion for which we take credit. There it you have it. The secret is out of the bag.

Trial judges do not always draft statements of decision. The winning side is glad to accept that chore. A busy trial judge sitting in a law and motion department may rely on a research assistant to draft a few sentences or a paragraph or two in a minute order.

Appellate court justices have full time research attorneys. And this is where my anxiety comes in. What if the research attorneys joined forces with the Hollywood writers and went on strike? Why would they want to do that? The residuals our opinions generate are emotions, not revenue. And that I share in abundance with my staff. Retired Justice Robert Thompson who co-authored with John Bilyeu, “Law Clerks and the Judicial Process” California University Press (1980) cautions that an over-reliance on law clerks can lead to the “bureaucratization of justice” at the expense of a fresh intellectual development of the law. I do not agree with that assessment . But Thompson may have a point when he suggested that if research attorneys have a hand in drafting opinions, their names should be listed in the California Reports. They could then at least take some of the blame.

But what if the research attorneys out of boredom or perversity, did go on strike? The thought of having to draft every word of every opinion makes me willing to negotiate at the first hint of a strike. But on second thought, perhaps my fears are unfounded. Writers are not always held in high esteem. Was it Samuel Goldwyn who referred to his screenwriters as "the mice" ? Some producers have suggested that television can survive without writers.

Crises fosters innovation. Maybe the Court of Appeal too, can survive without written opinions. The screen writers strike could be a sign that it’s time for the bugle to play silent taps for written opinions. In its place will be unwritten opinions. To those who say a silent bugle and an unwritten opinion are impossibilities I say, “Not.” (In view of the delicate nature of this subject, no research attorney has had a hand in drafting any part of this column.)

My idea just could work. There is a well-known concert hall composition, John Cage's work, “4'33" (Four Minutes, Thirty-Three Seconds). It is a silent piece of music in which a pianist sits at the Steinway on a concert stage and does not play the three movements of the composition. All one hears is the nervous titters and coughs of the audience. Some think the piece is designed to make listeners truly aware of sound. His second composition in this genre, “5’07” I hear is a real show stopper.

My unwritten opinions would follow John Cage’s

model. The opinion, like Cage's composition, would have a title, e.g. People v. Lamont Cranston. In this respect, the unwritten opinion, does not abjure the written word. In civil cases I would state whether the judgment was "affirmed" or "reversed." In criminal cases, the name of the case would suffice in most instances. After all, most are affirmed.

Some might argue that this approach erodes predictability in the law. Perhaps: but is it so predictable now? Retired judges who have entered the lucrative world of private judging argue forcefully to their clients that going to trial is a "real crap shoot." Lawyers would still file briefs, requiring an appellate judge to cut through forests of invective and scorn. She or he will get to the same result that was reached in the past. But now no need to explain it all in a dense convoluted opinion.

It just occurred to me now that I have written most of this column, that I will not get away with filing unwritten opinions. The California Constitution, Article 6 section 14, requires that our "decisions be in writing with reasons stated." I know how picky the Supreme Court can be. It will probably decide that a case name and the word “affirmed” or “reversed” is insufficient to constitute a written opinion. Darn! Jay Leno is writing his own jokes, so if there is a research attorney’s strike, I suppose I will have to write my own opinions in their entirety. Believe me you will know the difference. You won't see a bunch of citations and stilted legal language. Here’s one I wrote as an example.

“Defendant broke into a house and took lots of things. The jury decided he is a burglar. He is. People saw him do it and he admitted to the police he did it. He whines that he is not guilty, the judge hated him, and his sentence to state prison is too harsh. Only a ass would believe that and the law is not a ass.”

It’s short, punchy, and gets right to the point. That is the kind of opinion I might write. Only, I wouldn’t take credit for it.

Jazz and Judging

A person sitting next to me on the plane told me about his recent sex change operation. She and I both knew it was unlikely we would see each other again. I suppose that is why she could talk about this highly personal matter to a stranger. (I wonder if she was as frank with the blind date she had that evening?)

Columnists often write about personal matters. That is because when the columnist writes the readers have not yet been determined. Easier to be revelatory to a faceless inchoate readership than face to face with someone the columnist knows. The act of writing in the columnist’s present is past during the reader’s act of reading. Einstein no doubt would endorse the principle that “The reader’s present is the columnist’s past.”

This column, involving a delicate personal subject, I have already written and you will soon read. It is intimately related to the federal judiciary. By the way, while you are reading this column, I have already forgotten about it. I am working on something else. But it is not something I knew about when I wrote this column. Get it?

So to continue, no matter what the function or event, federal judges are always introduced first. Then when everyone is truly bored, they introduce the state court judges. A few months ago I spoke at the induction ceremony of a well-respected state trial judge, Judge Valerie Baker- Fairbank who had been recently appointed to the Federal District Court. Needless to say, many of her state court colleagues were present and joined the admiring audience, the numbers of which were so large they poured into adjoining courtrooms to see the ceremony on TV screens.

The judge presiding over the ceremony graciously welcomed everyone and then began to individually introduce the federal judges present from both the 9^th Circuit and the trial bench. The accolades and encomiums made the inhabitants of Olympus envious, “the brilliant, the scholarly, the genius, the distinguished.” And then a recitation about the judge’s hobbies, blood type, awards and honors dating from grammar school. Then it came to the state judges. “Would you all stand and be recognized”- two seconds later-“that’s enough, sit down.”

But the real reason federal judges have it made, is that unlike state judges, they do not have to run for election. A federal judge can close down the City of Los Angeles with impunity. A rebuke from the press or a higher court may elicit a yawn or shrug, but they are in office forever. Impeachment? Not likely. From the creation of the federal judiciary to the present, only thirteen federal judges have been impeached, and six of those were actually convicted.

Speaking of the federal judiciary takes me to my personal matter. It is my colonoscopy, a subject I had discussed years ago in my Daily Journal column (March 1995) when I was younger and less discrete. The colonoscopy of which I speak this time is a different one. Least you think this evidences a desperation for material, it is not exactly the colonoscopy itself that is pertinent, but instead, the conversation with the anesthesiologist.

I received a call the day before the procedure informing me that the anesthesiologist would like to talk to me the next morning when I come in. It is the day before when the “prep” occurs. The “prep” is not a picnic. In fact picnics are not allowed. I was reading briefs, but it was hard to concentrate, what with a liquid diet and constant interruptions that reminded me of the quality of some of the briefs.

So early the next morning I was on a gurney with a needle in my arm receiving an IV, waiting for the doctor to do to me what I do to attorneys at oral argument. I was a little groggy when the anesthesiologist came in. He broached a subject of great importance- did my insurance cover his services? I assured him that if it did not I would gladly pay his fee. To prove it, I agreed to sign the form he thrust in my hand. Of course the words were a blur, and for all I knew, my signature could make him the new owner of my house.

As he browsed through the charts he saw that I was a judge. “Oh you’re a judge,” he said in a higher pitched voice. He took the form out of my hand before I could sign it. He asked what kind of judge I was. “A fair one,” I said. He smiled nervously. “What court?” he asked. “The Court of Appeal,” I said. “9^th Circuit?” he asked. “No,” I answered, “my court is the state’s counterpart of that court.”

In a nanosecond he thrust the form back in my hand and directed my attention to the signature line. It was only fitting that after signing I should have a colonoscopy. I bet had I uttered the words “9^th Circuit” even out of context, I would not have had to sign the form.

But these days I have it as good as federal judges. That is because I am in what state judges call their “federal term.” That is a euphemistic shorthand way of saying, “ I am not running for re-election.” I can assure you that I have never looked over my shoulder when ruling on a high publicity case, or controversial matter. If the public doesn’t like or misunderstands my ruling, well that’s how it is. It goes with the territory. If there is a chance that I may be turned out of office because of a campaign waged against me by an extremist group with a personal vendetta against me, so be it. But in my “federal term” if those fanatics don’t like my rulings they can suck eggs----

Sorry, I got a little carried away. Where was I? Oh yes. So last year the voters saw fit to return me to office for a 12-year term. This has to be my federal term, right? I mean I am not going to stay that long--am I? I don’t want them bringing me orders to sign at the In Need of Lots of Care and Attention Residential Facility. “Here’s a writ petition that seeks to close the 405 Freeway. Just give the judge a little shake and wake him up. If he knows who he is, we will ask him if he is going to grant or deny it.” That could happen if I stay to the end of my term in 2019.

But in truth I kind of miss the edgy insecurity that comes with running for election. Most of the public have little or no criteria to make an informed vote. You never know what gets or loses votes.

Many state judges engage in a variety of other pursuits when they are not judging. Some sky dive, others crochet. Some run marathons, climb Everest, explore the North Pole, garden, act, sing, box, wrestle, write novels. The people they encounter in these endeavors could be a source of votes.

In off hours I sometimes play the piano in gigs with a jazz combo. The law’s seamless web stretches wide. There is a remarkable affinity between jazz and judging-lots of improvising. But when I play the piano, I don’t want anyone to know about the judge thing. Wouldn’t want to lose votes over a bad chorus of “Stella by Starlight.” But I did get a vote in last year’s election because of my solo on “Prelude to a Kiss.” It was from Charles Embree, a wonderful artist who had studied with Thomas Hart Benton. He is also a talented writer. For many years he wrote short stories for Esquire magazine about jazz musicians under the nom de plume, Riff Charles. He wrote me,“ Not all judges are piano players, but certainly all piano players are judges. They sit on a bench and hand down decisions to fingers directing them on which key to strike in what order and when. The sound heard is the soundness of the judgment rendered. If the music is select, you must elect! Based on this argument you will be receiving my vote in the upcoming contest.”

Embree’s incontrovertible logic and his elegant writing convinces me not to be such a malcontent. When I had to run for election I complained, and here I am in my federal term nostalgic for elections. I think I will just settle down and enjoy as much of my federal term as I decide to serve. Why fret? Everything came out all right in the colonoscopy.

What Goes Around Comes Around--But Not Always

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

Memories are Made of This-Part II

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Memories Are Made Of This

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