Over the past two decades, I have written around 200 columns. You think it’s easy knocking out a column every month? (A knockout of a column is a different story.) Take it from me, getting in the ring with words is not for scaredy cats. It is frightful and wearing to throw wild punches at frenzied words dancing and feinting with bewildering moves that throw me off balance. I 'm often ready to throw in the towel, but at the last minute I get my bearings with an idea that I personalize as my trainer. I get in the ring and go the distance, usually to a draw.
The idea for a previous column (Jan. 10, 2011, Profiles in Courage-the Sequel) came to me at the opera, Rigoletto. (The opera serves as a welcome exit from the boxing metaphors.) I wrote about a plucky woman I met in the men’s room of the Music Center. Incidentally, after the column was published, I learned from a superior court judge that the courageous woman was his wife. Just a week ago, my wife and I and dear friends were at the opera again for a Sunday matinee performance of Rossini’s Il Turco in Italia (The Turk in Italy). Keeping in mind Thomas Wolfe’s novel You Can’t Go Home Again, I did not expect anything as dramatic to happen again. It didn’t. On this Sunday, the men’s room was boring, and it is not a good place to tarry. Neither is lurking near the women’s room to see if some man would sneak in. Not a possibility. DMV lines move swiftly in comparison.
During the intermission I heard people complaining that the opera lasted 3 hours and 15 minutes. That meant they and we would not be home in time to view the beginning of the Academy Awards show. Oh dear! And then an idea hit me. Should there not be an awards ceremony each year to honor the best performances and decisions that come out of our legal system? But giving out “Oscars” would be so … so derivative. Instead, the winners would receive an “Oliver.”
I devised a list of categories eligible for awards: a dramatic role for trial lawyers (I rejected creating an award for best comedy judge and lawyer for obvious reasons, though I had some candidates in mind); supporting roles for law firm associates and judicial research attorneys; behind-the-scene roles for secretaries, assistants and paralegals; writing awards for briefs (comparable to original screenplays) and judicial opinions (comparable to screenplays adopted from another source).
And then I became stymied for the award that would parallel "Best Picture." Pardon my bias, but I wanted this award to reflect some great spectacle in the judiciary. I needed something that contained drama, conflict and tension something like The Social Network. I was at a loss. The Fighter had no appropriate counterpart in the court system, and I was ready to throw in the towel. (Sorry.) And then I found a way to solve my dilemma. It was in the very opera I was attending, Il Turco in Italia.
The opera involves a playwright who is looking for ideas for his next comedy. Only he cannot come up with something that is original or novel. He visits a gypsy camp where he hopes to find material and inspiration. He watches a drama unfold, which becomes his play, much like my writing about the lady in the men’s room. We need not repeat here the events in the opera because they involve multiple love affairs, a Turkish prince, his slave paramour, an unfaithful wife and mistaken identities. I cannot speak for the legal profession, but the plot of the opera bears no resemblance to the California judiciary … as far as I can determine.
I decided to use the device of the playwright in the opera to find material for my column. I would simply write about dramatic events unfolding in the judiciary. From this I might get a handle on what would qualify for the counterpart of "Best Picture" in the Academy Awards. The King's Speech was a wonderful movie, certainly deserving an Oscar, but my choice was The Social Network. But what in the judiciary could be comparable to the tension, the animosity, recriminations and rancor involving a billion dollar company?
I was ready to exit center stage (better than a boxing metaphor here) when it hit me like a perfect high C. It was right in front of my face the drama involving the Court Case Management System (CCMS) alleged to cost $2 billion or more. The state auditor had sharply criticized the management of the project and the oversight of its costs. Some legislators and judges were appalled by the way the project was handled, and a number of judges called for abolishment of the entire project. Even Justice Bruiniers, Chair of the Judicial Council's CCMS Executive Committee, appeared to agree with most of the auditor's critiques. But he and others have taken strong positions against abandoning the project.
Shortly after the auditor's scathing report, the Judicial Council received a cost benefit analysis from a prestigious audit tax firm that concluded the "statewide case management system … has an essential role in the operation of our state justice system" and, when in operation, will save the state $300 million a year.
A recent epistolary exchange between Justice Bruiniers and Los Angeles Superior Court Judge J. Stephen Czuleger highlighted great differences in perception about the manner in which the project was presented to judges statewide and to the Legislature. Some judges in those courts where a version of CCMS (V-3 the civil module) was implemented think it is wonderful. Others tell me it is a failure.
The playwright in Il Turco in Italia finds a happy ending to his play. The wayward wife decides it is more prudent to be more conservative and stay home with her husband and gives up her two lovers, one of whom is the Turk. The Turk settles down with the woman he truly loves, a slave from his harem, and the wife's other lover repents and gains forgiveness from her husband.
But I am facing an obstacle. There is not as yet an ending to the CCMS drama, let alone a happy one. Is there a way to bring this drama to a happy ending? Perhaps we all can agree that a statewide case management system that works will be beneficial and efficiently improve the administration of justice. But a good ending for this drama lies in the answers to some questions. Is CCMS worth the cost? If so, how do we pay for it when the judiciary's budget may be cut by $200 million? If we halt the project now, will we lose the investment we have made to date if we resume the project in the future? The Administrative Office of the Courts,(AOC,)just answered this question in the minutes of its last meeting. Cancelling the program will result in an unrecoverable loss of $270.5 million already spent on the development of CCMS-V4. With that good news in mind, how does the judiciary decide its spending priorities with a drastically reduced budget?
The playwright in Il Turco in Italia intervened on occasion to prod the characters in certain directions to achieve a good ending. I too wish to nudge us in a direction toward a satisfactory ending for our drama. I suggest an approach that reflects a paramount value: all players in our drama, the judges, lawyers, and administrators throughout the state, whatever their opinions about CCMS, unite in support of our highest priority Keep the Courts Open.
To close the courtroom in the middle of a trial and tell litigants they must go home and come back in two days because we have other things to pay for is not a good ending to our drama. It is disheartening to the judges and court staff who have devoted themselves to the cause of justice. And it is most unfair to the public who trusts us and depends on us to resolve their disputes.
Keeping our values straight will provide a good ending to our drama. And the award, the coveted Oliver, will go to those who sacrifice to make this ending possible.
Monday, March 07, 2011
Wednesday, March 02, 2011
The Unintended Consequences of Impatience
Patience, one of the most important traits a judge must possess. The JNE (Judicial Nominees Evaluation) Commission questionnaire asks those charged with evaluating candidates for judicial office about temperament. Under that general rubric are the specific qualities of courtesy and patience.
Take this scenario. After listening to an attorney drone on with repetitive, irrelevant, mind-numbing questions in a monotone, the impatient trial judge will interrupt with a hint, "Is that all counsel?" Is it not possible that the cowed attorney, who takes the hint and sits down, will have missed the opportunity to ask that all important question, the answer to which will provide the resolution of the case? That can be the unintended consequence of a judge's impatient remark.
The discerning reader might detect a faint tone of sarcasm in the previous paragraph. I will come clean. President Jimmy Carter admitted to lusting in his heart for women. I admit to succumbing to impatience, not just in my heart, but in practice, on and off the bench.
I recall once, or twice, maybe more, at oral argument at the Court of Appeal, when I subtly may have displayed impatience. I called a case, and the lawyer, who had hired a Bekins moving van to deliver to the court his files, walked down the aisle to the podium, dragging behind him a dolly piled high with files and Samsonite carrying cases, followed by an associate, driving a forklift piled high with much of the same.
The lawyer asked for a minute as he unstrapped the files, pulled numerous folders from briefcases, and placed them on the counsel table. It was more than a minute. Finally he approached the podium and opened a file, and then said something like, "Whoops, just another second, Your Honor." It wasn't. What did I say in response? "Why not take all morning with your infuriating delays and waste the precious time of the lawyers waiting to argue their cases? You think that bringing volumes of transcripts from the trial you deserved to lose will enhance your chances on appeal? Get real."
That is not what I said. That is what I thought. The lawyer grabbed another file and once again approached the podium. As he cleared his throat to begin his argument, and was about to utter his first word, I said, "Your time is up." Many in the courtroom laughed and applauded. But I don't do that anymore. It might be interpreted as a sign of impatience. Now don't get me wrong. Sometimes impatience is warranted. A judge should not lose control of the courtroom for fear he or she might be labeled "impatient." I have learned to control my proclivity for impatience, even when it is warranted, because of my greater concern about unintended consequences.
Let me illustrate with a hypothetical. Sooner or later, we Americans once again will display our irritation with the French, even though the previous week we loved them. Some snooty French cook will claim to have invented "French fries," and we will protest. Movements to ban French toast and outlaw "French kissing" will gain momentum.
As the protest grows, a small municipality in the Midwest enacts an ordinance requiring that all French Poodles be neutered. The five people who own French Poodles hire the ACLU to challenge the ordinance in court. The town's city attorney thinks the ordinance is silly, and hints he will not enforce it. Owners of German Shepherds, Russian Greyhounds, Mexican Hairlesses, Japanese Akitas, and English Setters throughout the country urge the French Poodle owners to drop their suit. They caution, better to play dead for the moment. But no, the suit is filed and makes its way to the Supreme Court. In a unanimous decision, the court holds the ordinance is unconstitutional and chides the city council for enacting an idiotic law. The Supreme Court's harsh language reflects “impatience,” and offends the populous of the state in which the municipality is located. The people enact a constitutional amendment that prohibits ownership of not just French Poodles, but all dogs of foreign countries. Moral of the story: Let sleeping dogs lie.
Speaking of dogs, a personal experience brought home to me the relationship between impatience and unintended consequences and taught me a lesson. A friend of mine died. His elderly mother, Francine, lived alone in a condominium in the San Fernando Valley. I dropped in on occasion to see how she was doing and to take her out to dinner. She had an elderly Schnauzer, Regina, for whom I had an overwhelming aversion. I love animals, but detest dogs with human names. Regina walked stiffed legged, like a wind-up toy. Frequently, and for no apparent reason, she emitted a sound, which I charitably call a bark. Regina’s “bark” sounded more like a muffled uh-oo-gha horn. Ring Francine’s doorbell and you might hear a faint “uh-oo-gha, uh-oo-gha.” Sit at her kitchen table drinking a cup of coffee, and you might hear at your feet, “uh-oo-gha, uh-oo-gha.” As you shall learn shortly, this unpleasant description of Regina’s decrepitude is germane to my story.
It was Thanksgiving, and we invited Francine to our house for an early turkey dinner. It was understood that Regina would not be joining us. I drove out to the Valley to pick up Francine around 2 p.m. This was a typical Southern California Thanksgiving Day, 85 degrees. I rang the doorbell and Francine invited me in. It was hard to see inside because the curtains were drawn. I could hear a weak “uh-oo-gha, uh-oo-gha.” As my eyes became accustomed to the dark, I could make out that Francine was wearing a full-length winter coat. I found this curious, not just because of the warm temperature outside, but because the heat in the condominium was turned on high and blasting out of the vents.
I believe this was the point at which I displayed… impatience. Did I take a moment to ask Francine, who I had no reason to believe was senile, for an explanation? No, not impatient Arthur. “This is crazy,” I thundered. “You are wasting energy.” I flung open the curtains causing Regina to blink as sunlight flooded the room. I turned the knob on the heating controls to “off.” “Shall we go?” I said… impatiently without letting Francine get a word in edgewise. To Regina, I said… impatiently, “Go chew on your rancid rubber bone…if you have any teeth left.” It is not easy to admit that I could have been so sarcastic, so… impatient.
Francine and I left and we quickly forgot about my unpleasant outburst. We had a delicious Thanksgiving dinner with family and friends, and Francine had a wonderful time. I drove her home around 9:30 p.m. Unlike the afternoon, the evening in the Valley was particularly cold. Luckily, Francine was wearing her warm winter coat.
We opened the door to the condominium and turned on the light. I sensed something was wrong quite apart from it being freezing inside.
No “uh-oo-gha, uh-oo-gha.” No Regina. I shivered. There in a corner of the room I saw stretched out and unmoving, Regina. She was stiff as a board, and appeared to be critically, seriously and terminally dead. It was obvious rigor mortis had set in. But to be doubly sure, I drew upon the knowledge I had acquired in my high school physiology class. I placed two fingers near Regina’s nostrils. No breath. Conclusion-Regina is dead, a conclusive presumption.
Francine was standing on the other side of the room, shivering in her winter coat. My mind was racing. What am I going to do with a dead Schnauzer on Thanksgiving evening, and what am I going to do with Francine who had just lost her best friend?
I turned on the heat, which once again came blasting out of the vent with a “whoosh.” I embraced Francine and told her how sorry I was that Regina had passed on. Inwardly I cursed the predicament I was in and I cursed myself for being in the predicament. Meanwhile, the room was heating up. I suggested Francine take off her coat. I glanced across the room at Regina’s lifeless body. Wait a second. Did I see a flick of Regina’s ear? Can’t be. Probably wishful thinking. But just to be sure I walked over to Regina. The room was like an oven. Regina twitched. She opened an eye. She stirred. She got up… slowly, but she got up and stayed up. I replaced my earlier conclusive presumption with a new one. Regina is alive - beyond all doubt - at least for now. Oh joy! Francine is ecstatic. Stiff -legged Regina is hobbling about.
From this upsetting experience, I learned a good lesson about the corrosive effect of impatience. Had I asked earlier in the day why the heat was on and the curtains closed, this upsetting chain of events would never have occurred.
And from that day on, I have made every effort to be a patient and courteous person on and off the bench. But on occasion I wonder whether a law outlawing Schnauzers would pass muster.
Take this scenario. After listening to an attorney drone on with repetitive, irrelevant, mind-numbing questions in a monotone, the impatient trial judge will interrupt with a hint, "Is that all counsel?" Is it not possible that the cowed attorney, who takes the hint and sits down, will have missed the opportunity to ask that all important question, the answer to which will provide the resolution of the case? That can be the unintended consequence of a judge's impatient remark.
The discerning reader might detect a faint tone of sarcasm in the previous paragraph. I will come clean. President Jimmy Carter admitted to lusting in his heart for women. I admit to succumbing to impatience, not just in my heart, but in practice, on and off the bench.
I recall once, or twice, maybe more, at oral argument at the Court of Appeal, when I subtly may have displayed impatience. I called a case, and the lawyer, who had hired a Bekins moving van to deliver to the court his files, walked down the aisle to the podium, dragging behind him a dolly piled high with files and Samsonite carrying cases, followed by an associate, driving a forklift piled high with much of the same.
The lawyer asked for a minute as he unstrapped the files, pulled numerous folders from briefcases, and placed them on the counsel table. It was more than a minute. Finally he approached the podium and opened a file, and then said something like, "Whoops, just another second, Your Honor." It wasn't. What did I say in response? "Why not take all morning with your infuriating delays and waste the precious time of the lawyers waiting to argue their cases? You think that bringing volumes of transcripts from the trial you deserved to lose will enhance your chances on appeal? Get real."
That is not what I said. That is what I thought. The lawyer grabbed another file and once again approached the podium. As he cleared his throat to begin his argument, and was about to utter his first word, I said, "Your time is up." Many in the courtroom laughed and applauded. But I don't do that anymore. It might be interpreted as a sign of impatience. Now don't get me wrong. Sometimes impatience is warranted. A judge should not lose control of the courtroom for fear he or she might be labeled "impatient." I have learned to control my proclivity for impatience, even when it is warranted, because of my greater concern about unintended consequences.
Let me illustrate with a hypothetical. Sooner or later, we Americans once again will display our irritation with the French, even though the previous week we loved them. Some snooty French cook will claim to have invented "French fries," and we will protest. Movements to ban French toast and outlaw "French kissing" will gain momentum.
As the protest grows, a small municipality in the Midwest enacts an ordinance requiring that all French Poodles be neutered. The five people who own French Poodles hire the ACLU to challenge the ordinance in court. The town's city attorney thinks the ordinance is silly, and hints he will not enforce it. Owners of German Shepherds, Russian Greyhounds, Mexican Hairlesses, Japanese Akitas, and English Setters throughout the country urge the French Poodle owners to drop their suit. They caution, better to play dead for the moment. But no, the suit is filed and makes its way to the Supreme Court. In a unanimous decision, the court holds the ordinance is unconstitutional and chides the city council for enacting an idiotic law. The Supreme Court's harsh language reflects “impatience,” and offends the populous of the state in which the municipality is located. The people enact a constitutional amendment that prohibits ownership of not just French Poodles, but all dogs of foreign countries. Moral of the story: Let sleeping dogs lie.
Speaking of dogs, a personal experience brought home to me the relationship between impatience and unintended consequences and taught me a lesson. A friend of mine died. His elderly mother, Francine, lived alone in a condominium in the San Fernando Valley. I dropped in on occasion to see how she was doing and to take her out to dinner. She had an elderly Schnauzer, Regina, for whom I had an overwhelming aversion. I love animals, but detest dogs with human names. Regina walked stiffed legged, like a wind-up toy. Frequently, and for no apparent reason, she emitted a sound, which I charitably call a bark. Regina’s “bark” sounded more like a muffled uh-oo-gha horn. Ring Francine’s doorbell and you might hear a faint “uh-oo-gha, uh-oo-gha.” Sit at her kitchen table drinking a cup of coffee, and you might hear at your feet, “uh-oo-gha, uh-oo-gha.” As you shall learn shortly, this unpleasant description of Regina’s decrepitude is germane to my story.
It was Thanksgiving, and we invited Francine to our house for an early turkey dinner. It was understood that Regina would not be joining us. I drove out to the Valley to pick up Francine around 2 p.m. This was a typical Southern California Thanksgiving Day, 85 degrees. I rang the doorbell and Francine invited me in. It was hard to see inside because the curtains were drawn. I could hear a weak “uh-oo-gha, uh-oo-gha.” As my eyes became accustomed to the dark, I could make out that Francine was wearing a full-length winter coat. I found this curious, not just because of the warm temperature outside, but because the heat in the condominium was turned on high and blasting out of the vents.
I believe this was the point at which I displayed… impatience. Did I take a moment to ask Francine, who I had no reason to believe was senile, for an explanation? No, not impatient Arthur. “This is crazy,” I thundered. “You are wasting energy.” I flung open the curtains causing Regina to blink as sunlight flooded the room. I turned the knob on the heating controls to “off.” “Shall we go?” I said… impatiently without letting Francine get a word in edgewise. To Regina, I said… impatiently, “Go chew on your rancid rubber bone…if you have any teeth left.” It is not easy to admit that I could have been so sarcastic, so… impatient.
Francine and I left and we quickly forgot about my unpleasant outburst. We had a delicious Thanksgiving dinner with family and friends, and Francine had a wonderful time. I drove her home around 9:30 p.m. Unlike the afternoon, the evening in the Valley was particularly cold. Luckily, Francine was wearing her warm winter coat.
We opened the door to the condominium and turned on the light. I sensed something was wrong quite apart from it being freezing inside.
No “uh-oo-gha, uh-oo-gha.” No Regina. I shivered. There in a corner of the room I saw stretched out and unmoving, Regina. She was stiff as a board, and appeared to be critically, seriously and terminally dead. It was obvious rigor mortis had set in. But to be doubly sure, I drew upon the knowledge I had acquired in my high school physiology class. I placed two fingers near Regina’s nostrils. No breath. Conclusion-Regina is dead, a conclusive presumption.
Francine was standing on the other side of the room, shivering in her winter coat. My mind was racing. What am I going to do with a dead Schnauzer on Thanksgiving evening, and what am I going to do with Francine who had just lost her best friend?
I turned on the heat, which once again came blasting out of the vent with a “whoosh.” I embraced Francine and told her how sorry I was that Regina had passed on. Inwardly I cursed the predicament I was in and I cursed myself for being in the predicament. Meanwhile, the room was heating up. I suggested Francine take off her coat. I glanced across the room at Regina’s lifeless body. Wait a second. Did I see a flick of Regina’s ear? Can’t be. Probably wishful thinking. But just to be sure I walked over to Regina. The room was like an oven. Regina twitched. She opened an eye. She stirred. She got up… slowly, but she got up and stayed up. I replaced my earlier conclusive presumption with a new one. Regina is alive - beyond all doubt - at least for now. Oh joy! Francine is ecstatic. Stiff -legged Regina is hobbling about.
From this upsetting experience, I learned a good lesson about the corrosive effect of impatience. Had I asked earlier in the day why the heat was on and the curtains closed, this upsetting chain of events would never have occurred.
And from that day on, I have made every effort to be a patient and courteous person on and off the bench. But on occasion I wonder whether a law outlawing Schnauzers would pass muster.
Tuesday, January 18, 2011
Profiles in Courage- The Sequel
Warning. The concluding paragraphs of this column contain scatological references, which some, if not all, discriminating readers will find offensive. We strongly advise discretion for the sensitive and parental oversight for those of tender age.
Last month my column centered on the ripple effect of judicial decisions. My example was Superior Court Judge Stanley Mosk's 1948 decision in which he held that restrictive covenants were unconstitutional. I expressed my admiration for his reasoning and insight. I did not mention his courage (a trait, incidentally, I believe he possessed in abundance), because judges who lack courage to make well reasoned, yet controversial, decisions when called for should look for other work. Such decision making is implied in the job description.
Yet many judges who stake out new ground with a constitutionally based decision are often labeled "courageous" or "irresponsible," depending upon the reader's evaluation of the decision. Judges know this. Though most welcome praise, when they are faced with disapproval of a controversial decision, they simply may shrug their shoulders, an acknowledgement that criticism goes with the territory.
Chief Justice George's first opinion in the In re Marriage cases held the ban on same-sex marriages violated California's state constitution. Courage aside, three concurring members of the court agreed that George made the right decision. George felt compelled to change course and uphold a ban on same-sex marriage when the voters nullified his first opinion with the passage of Proposition 8, which amended California's state constitution to define marriage as occurring only between a man and a woman. It would be wrongheaded to label George's first opinion heroic, and the second one pusillanimous. He ruled as he thought he must. Although George's first opinion does not have the force of law, and may settle in the dust of obscurity, it will endure as an example of a judge doing his job. Far better than having one's name on a building.
But some decisions are steeped in courage. Los Angeles Superior Court Judge Alfred Gitelson decided the controversial "bussing case." He ruled that the Los Angeles Board of Education, as the school district was then called, must end segregation. Judge Gitelson's election was on the horizon when he made the momentous decision that would have mandated bussing of students in Los Angeles. He could have held the matter under submission (no relation to the title of my column) until after the election, but he filed the judgment a short time before the election.
The timing of that decision reflected his integrity and courage. No doubt Judge Gitelson knew his decision would engender a firestorm of protest, but as far as I can determine, up until that time no superior court judge had been turned out of office because of an unpopular judicial decision. I suspect that if Gitelson knew he would be turned out of office, he still would not have postponed the filing of the judgment.
There are other less dramatic ways in which a judge displays courage. It is not easy to summon the strength to admit a mistake or to face up to an embarrassing situation. A judge who dresses down a lawyer in court for a minor gaffe abuses his authority. But what if the shoe is on the other foot and the judge is the one who does something foolish?
The late Ventura Superior Court Judge Ben Ruffner invariably treated lawyers and litigants with courtesy and respect. No one would want to see him in an embarrassing position. An example of the unfair distribution of reward and punishment we so often experience was illustrated by what happened to him one day during a jury trial over which he was presiding. He leaned back in his large swivel chair while aligning the fingers of each hand so that they touched their counterpart in the opposite hand. His eyes were partially closed, not because he was dozing, but because he was listening intently to the testimony. When the tilt of his chair passed the line of equipoise, he toppled over backwards.
The view from the courtroom facing the bench revealed Judge Ruffner's shoes, the soles of which were pointed at the ceiling, and a bare portion of his legs just above his socks. If Ruffner had treated people poorly, there might have been laugher in the courtroom. That was not the case. The eerie silence in the courtroom must have been what astronauts experience in outer space.
Ruffner freed himself from the overturned chair, smoothed his robe, and turned the chair right side up. He then sat in it, rolled it forward so that his arms rested on the writing portion of the bench, and addressed those in the courtroom, figures in a painting, frozen in place. In slow, measured tones, he said, "I do not do that for just any jury."
Judge Bernie Kamins, retired from the Los Angeles Superior Court, often sits by assignment in various courts throughout the state. He had minor surgery in Los Angeles. His stitches were due to be removed when he was sitting by assignment in Santa Clara. He went into an Urgent Care center across the street from the courthouse to have this simple procedure performed. He did not know that this center was solely for pregnant women. When he affixed his signature to the sign-in sheet and heard titters in the background, he knew something was amiss. The receptionist inquired if he were a seahorse. Instead of scurrying for the exit, he extended good wishes to the pregnant ladies in the waiting room. Kamins was not expecting, but the nurse nevertheless removed his stitches.
I suppose these last two examples are more about grace under pressure than real courage. But my next example is about a person who possesses the grit and courage to which we should all aspire. Through mere chance, I encountered this valiant individual at the Los Angeles Music Center last month during the intermission between the second and third acts of Verdi's Rigoletto.
My wife and I went downstairs to the restrooms. As usual, the line from the vestibule into the women's room snaked in uneven circles. It inched forward imperceptibly. I said, as I have innumerable times in the past, "Doubt you will make it before the end of the intermission." "I will make it," she said with the confidence borne of countless successful missions.
I went to the crowded men's room. But no long lines. I expected that I would soon join other men in the vestibule, waiting impatiently for their wives, lovers, sisters, mothers, partners or friends. We would glance nervously at our watches when the lights flicker, indicating intermission is coming to a close.
But this time, things were different. I entered the gleaming white, rectangular men's room. To my left was the long aisle I had seen so many times before. On either side were two rows of approximately fifteen starkly white, waterless urinals, all of them occupied. At the end of the aisle was a right turn into another long aisle, against the far wall of which were fifteen to twenty toilet stalls.
I quickly walked down the first aisle where I saw the backs of a variety of men's jackets. Just as I approached the corner and made my right turn, a toilet stall opened up. I quickly slipped in as the previous occupant stepped out. He and I, adhering to men's room etiquette, avoided direct eye contact.
I closed the stall door. How should I put this? You can be a president, an astronaut, a Nobel Prize winner, an emperor, a rock star… even a judge… it doesn't matter… you still have to pee. Task completed. I opened the door. And there facing me was … a woman!
Our eyes met for a split second. Then in an instant she was in and I was out of the stall. The door closed. I didn't say anything. No one said anything. I went back along the aisle of shining urinals to a wide square room with sinks. I washed my hands and crowded with others at the technically advanced paper towel dispenser, which, despite our frantic hand waving, refused to dispense. I didn't care. My mind was on the woman in the stall, the Joan of Arc, the Madame Curie, the Florence Nightingale, who had the fortitude to march into the men's room in her time of need.
I thought of her opening the stall and hurrying along the long row of urinals to the exit. Sir Walter Raleigh came to mind. I decided to help. With my wet hands behind my back, I raced back down the aisle to the toilet stall where earlier our eyes met. I stood guard, waiting for her to open the door. She did, and our eyes met again.
"I am here to run interference for you to cover for you. I am here for you," I said.
"Let's go," she said. And out we rushed as seemingly one person, me directly in front of her. Once out in the vestibule, we laughed giddily and I brought her over to meet Barbara, who for the first time was waiting for me. I said, "Barbara, I would like you to meet a person of great courage who I deeply admire." I turned to the woman I had ushered out of the men's room and asked, "By the way, what is your name?" She told us and we all shook hands.
This woman of valor I will probably never see again. She said simply and eloquently, "I really had to go, and so I said to myself, 'What's the big deal?' and I just marched in there." We said goodbye and we made it back to our seats for the last act of Rigoletto, which we all watched in comfort.
I then wondered whether I would have the courage in my time of need to walk into a women's room…. Forget it, not easy to write a column from County Jail.
Last month my column centered on the ripple effect of judicial decisions. My example was Superior Court Judge Stanley Mosk's 1948 decision in which he held that restrictive covenants were unconstitutional. I expressed my admiration for his reasoning and insight. I did not mention his courage (a trait, incidentally, I believe he possessed in abundance), because judges who lack courage to make well reasoned, yet controversial, decisions when called for should look for other work. Such decision making is implied in the job description.
Yet many judges who stake out new ground with a constitutionally based decision are often labeled "courageous" or "irresponsible," depending upon the reader's evaluation of the decision. Judges know this. Though most welcome praise, when they are faced with disapproval of a controversial decision, they simply may shrug their shoulders, an acknowledgement that criticism goes with the territory.
Chief Justice George's first opinion in the In re Marriage cases held the ban on same-sex marriages violated California's state constitution. Courage aside, three concurring members of the court agreed that George made the right decision. George felt compelled to change course and uphold a ban on same-sex marriage when the voters nullified his first opinion with the passage of Proposition 8, which amended California's state constitution to define marriage as occurring only between a man and a woman. It would be wrongheaded to label George's first opinion heroic, and the second one pusillanimous. He ruled as he thought he must. Although George's first opinion does not have the force of law, and may settle in the dust of obscurity, it will endure as an example of a judge doing his job. Far better than having one's name on a building.
But some decisions are steeped in courage. Los Angeles Superior Court Judge Alfred Gitelson decided the controversial "bussing case." He ruled that the Los Angeles Board of Education, as the school district was then called, must end segregation. Judge Gitelson's election was on the horizon when he made the momentous decision that would have mandated bussing of students in Los Angeles. He could have held the matter under submission (no relation to the title of my column) until after the election, but he filed the judgment a short time before the election.
The timing of that decision reflected his integrity and courage. No doubt Judge Gitelson knew his decision would engender a firestorm of protest, but as far as I can determine, up until that time no superior court judge had been turned out of office because of an unpopular judicial decision. I suspect that if Gitelson knew he would be turned out of office, he still would not have postponed the filing of the judgment.
There are other less dramatic ways in which a judge displays courage. It is not easy to summon the strength to admit a mistake or to face up to an embarrassing situation. A judge who dresses down a lawyer in court for a minor gaffe abuses his authority. But what if the shoe is on the other foot and the judge is the one who does something foolish?
The late Ventura Superior Court Judge Ben Ruffner invariably treated lawyers and litigants with courtesy and respect. No one would want to see him in an embarrassing position. An example of the unfair distribution of reward and punishment we so often experience was illustrated by what happened to him one day during a jury trial over which he was presiding. He leaned back in his large swivel chair while aligning the fingers of each hand so that they touched their counterpart in the opposite hand. His eyes were partially closed, not because he was dozing, but because he was listening intently to the testimony. When the tilt of his chair passed the line of equipoise, he toppled over backwards.
The view from the courtroom facing the bench revealed Judge Ruffner's shoes, the soles of which were pointed at the ceiling, and a bare portion of his legs just above his socks. If Ruffner had treated people poorly, there might have been laugher in the courtroom. That was not the case. The eerie silence in the courtroom must have been what astronauts experience in outer space.
Ruffner freed himself from the overturned chair, smoothed his robe, and turned the chair right side up. He then sat in it, rolled it forward so that his arms rested on the writing portion of the bench, and addressed those in the courtroom, figures in a painting, frozen in place. In slow, measured tones, he said, "I do not do that for just any jury."
Judge Bernie Kamins, retired from the Los Angeles Superior Court, often sits by assignment in various courts throughout the state. He had minor surgery in Los Angeles. His stitches were due to be removed when he was sitting by assignment in Santa Clara. He went into an Urgent Care center across the street from the courthouse to have this simple procedure performed. He did not know that this center was solely for pregnant women. When he affixed his signature to the sign-in sheet and heard titters in the background, he knew something was amiss. The receptionist inquired if he were a seahorse. Instead of scurrying for the exit, he extended good wishes to the pregnant ladies in the waiting room. Kamins was not expecting, but the nurse nevertheless removed his stitches.
I suppose these last two examples are more about grace under pressure than real courage. But my next example is about a person who possesses the grit and courage to which we should all aspire. Through mere chance, I encountered this valiant individual at the Los Angeles Music Center last month during the intermission between the second and third acts of Verdi's Rigoletto.
My wife and I went downstairs to the restrooms. As usual, the line from the vestibule into the women's room snaked in uneven circles. It inched forward imperceptibly. I said, as I have innumerable times in the past, "Doubt you will make it before the end of the intermission." "I will make it," she said with the confidence borne of countless successful missions.
I went to the crowded men's room. But no long lines. I expected that I would soon join other men in the vestibule, waiting impatiently for their wives, lovers, sisters, mothers, partners or friends. We would glance nervously at our watches when the lights flicker, indicating intermission is coming to a close.
But this time, things were different. I entered the gleaming white, rectangular men's room. To my left was the long aisle I had seen so many times before. On either side were two rows of approximately fifteen starkly white, waterless urinals, all of them occupied. At the end of the aisle was a right turn into another long aisle, against the far wall of which were fifteen to twenty toilet stalls.
I quickly walked down the first aisle where I saw the backs of a variety of men's jackets. Just as I approached the corner and made my right turn, a toilet stall opened up. I quickly slipped in as the previous occupant stepped out. He and I, adhering to men's room etiquette, avoided direct eye contact.
I closed the stall door. How should I put this? You can be a president, an astronaut, a Nobel Prize winner, an emperor, a rock star… even a judge… it doesn't matter… you still have to pee. Task completed. I opened the door. And there facing me was … a woman!
Our eyes met for a split second. Then in an instant she was in and I was out of the stall. The door closed. I didn't say anything. No one said anything. I went back along the aisle of shining urinals to a wide square room with sinks. I washed my hands and crowded with others at the technically advanced paper towel dispenser, which, despite our frantic hand waving, refused to dispense. I didn't care. My mind was on the woman in the stall, the Joan of Arc, the Madame Curie, the Florence Nightingale, who had the fortitude to march into the men's room in her time of need.
I thought of her opening the stall and hurrying along the long row of urinals to the exit. Sir Walter Raleigh came to mind. I decided to help. With my wet hands behind my back, I raced back down the aisle to the toilet stall where earlier our eyes met. I stood guard, waiting for her to open the door. She did, and our eyes met again.
"I am here to run interference for you to cover for you. I am here for you," I said.
"Let's go," she said. And out we rushed as seemingly one person, me directly in front of her. Once out in the vestibule, we laughed giddily and I brought her over to meet Barbara, who for the first time was waiting for me. I said, "Barbara, I would like you to meet a person of great courage who I deeply admire." I turned to the woman I had ushered out of the men's room and asked, "By the way, what is your name?" She told us and we all shook hands.
This woman of valor I will probably never see again. She said simply and eloquently, "I really had to go, and so I said to myself, 'What's the big deal?' and I just marched in there." We said goodbye and we made it back to our seats for the last act of Rigoletto, which we all watched in comfort.
I then wondered whether I would have the courage in my time of need to walk into a women's room…. Forget it, not easy to write a column from County Jail.
Wednesday, January 05, 2011
The Ripple Effect
We have all heard of the ripple effect, how even the most insignificant act can have far-reaching consequences. At the risk of sounding self-important, my sneeze last week may have caused an avalanche in Tibet. I hope no one was injured.
Seldom are we aware of the ripple effect resulting from a kind or an insulting word. Judges may make an off-handed remark in court that could have significant consequences for a litigant, a witness, or someone they know.
I recall a case over which I presided some 30 years ago. A young woman was charged with a misdemeanor offense stemming from her failure to protect her three-year-old daughter from her father's abuse. She pled guilty and I told her about her obligation to protect her daughter and to stand up to the father or call the police.
The young woman thanked me for the advice and I ordered her released from custody. We continued her case to the next month for her sentencing hearing. At that hearing I was surprised to see her dressed in jail garb. She was in custody. The Deputy City Attorney moved to dismiss the misdemeanor offense. I felt a sinking feeling in the pit of my stomach. The City Attorney informed me that he was dismissing the case because she was now facing a more serious offense, the murder of her husband. She smiled at me as though she had done a good deed. Maybe I am overstating it, but I felt she was tacitly telling me, "See, I followed your advice." I am still haunted by a vague sense of guilt for my possible complicity.
I recall a complicated case I wrote concerning whether a landlord was required to return a renter's security deposit. The case involved a statute that I said "teeter[ed] on the brink of unintelligibility." There had been much previous litigation concerning this statute. When the lawyer representing the landlord in a previous case inquired of an appellate panel how his client could avoid the harsh effect of the security deposit, one of the justices said from the bench, "Call it rent." Were it not for that off-the-cuff remark, I would not have had to struggle with Granberry v. Islay Investments (1984) 161 Cal.App.3d 382.
A judge's decision in a particular case can, and often does, have far-reaching consequences for many individuals. Going back again more than 30 years ago, I declared the solicitation section of Penal Code section 647(a) an unconstitutional violation of the First Amendment. The Brown Act made sexual acts between consenting adults legal. I reasoned that "if you can do it, you ought to be able to talk about it," and dismissed approximately 40 cases that charged violations of 647a. In a separate but similar case, the California Supreme Court in Pryor v. Municipal Court (1979) 25 Cal.3d 238 ruled as I did. To get an idea of the profound effect these decisions had on millions of people, I recommend you read "The Domino Effect," by Thomas F. Coleman, who, along with Jay Kohorn, argued the case in my court and the Pryor case before the Supreme Court. Their compelling briefs and cogent arguments made my job easy.
Stanley Mosk, one of California's preeminent jurists, wrote opinions that produced ripple effects permeating the state and the nation. Many of his rulings will endure for generations. But one case he decided as a young trial judge also created ripples that significantly affected many lives. Stanley Mosk's son, Court of Appeal Justice Richard Mosk, wrote a touching article in the Daily Journal, October 14, 2010, The Intersection of Two Lives, about some of the people whose lives were changed by this case, decided more than 63 years ago.
The famous United States Supreme Court decision, Shelley v. Kraemer (1948) 334 U.S. 1, holding that racially restrictive covenants in property deeds were unenforceable in courts of law, had not yet been decided. In Mosk's case, a Black family, the Dryes, purchased a house, the deed of which contained a racially restrictive covenant. When some neighborhood residents sought to enforce the Caucasian-only resident requirement, other Black families moved, but not the Dryes. They stayed to fight this injustice. They were represented by Loren Miller, the great civil rights lawyer, who later became a judge, and whose son Loren Miller became a distinguished Superior Court judge and a dear friend and colleague.
Judge Mosk ruled the covenants were an unconstitutional violation of the Fourteenth Amendment and sustained the demurrer without leave to amend. He pointed out how callous it would be to deny Mr. Drye, a decorated war hero who fought in two wars to preserve our country's freedom, the right to live in a house because of his race. The next year the United States Supreme Court decided Shelley v. Kraemer.
The Dryes stayed in the house and raised their son, whom I will never forget, and not because he and I share a first name. I met Arthur Drye on November 5, 2010. That was the day I was privileged to attend the ribbon-cutting ceremony at the new Stanley Mosk Elementary School in the West Valley. All of us in the audience in the school auditorium felt a connection with one another. You could tell, because we were all smiling, a reflection about how good we felt about the ceremony.
One of the speakers was Arthur Drye, a teacher and school administrator. He asked the students to think for a moment about their heroes. He asked them if Superman or Spiderman were heroes. I was relieved to hear the kids roar in unison, "No!" When he asked if their parents and teachers were heroes, they yelled, "Yes!" I thought to myself there is hope for the future. Drye then spoke of his heroes, his father and mother, who had the courage and character to fight for their rights, and his hero, Stanley Mosk, who made it possible for him to live in the neighborhood of his parents' choice. He spoke of the jeers and taunts he suffered in school because of his race. But, like his parents, he refused to be defeated and became a teacher and school administrator. His message: A hero stands up to bullies. We succeed by not encouraging bullies. Bullies only win if we let them.
It was an extraordinary experience to hear Arthur Drye, standing on the auditorium stage of the Stanley Mosk Elementary School, inspiring and encouraging the students, 63 years after Judge Mosk's decision. It is fitting that the downtown court civil courthouse in Los Angeles be named the Stanley Mosk Courthouse. It is an acknowledgement of his invaluable contribution to California. No doubt Stanley Mosk would be pleased with this recognition. But the grammar school that bears his name, stemming from a demurrer sustained without leave to amend over six decades ago, I suspect, would be an immense satisfaction to him and would hold a special place in his heart.
Stanley Mosk swore me in as a Municipal Court judge on Labor Day, 1975. Through his example and my association with him, he has been my mentor. Arthur Drye and I have something in common beyond our same first names. For us, Stanley Mosk is a hero.
Seldom are we aware of the ripple effect resulting from a kind or an insulting word. Judges may make an off-handed remark in court that could have significant consequences for a litigant, a witness, or someone they know.
I recall a case over which I presided some 30 years ago. A young woman was charged with a misdemeanor offense stemming from her failure to protect her three-year-old daughter from her father's abuse. She pled guilty and I told her about her obligation to protect her daughter and to stand up to the father or call the police.
The young woman thanked me for the advice and I ordered her released from custody. We continued her case to the next month for her sentencing hearing. At that hearing I was surprised to see her dressed in jail garb. She was in custody. The Deputy City Attorney moved to dismiss the misdemeanor offense. I felt a sinking feeling in the pit of my stomach. The City Attorney informed me that he was dismissing the case because she was now facing a more serious offense, the murder of her husband. She smiled at me as though she had done a good deed. Maybe I am overstating it, but I felt she was tacitly telling me, "See, I followed your advice." I am still haunted by a vague sense of guilt for my possible complicity.
I recall a complicated case I wrote concerning whether a landlord was required to return a renter's security deposit. The case involved a statute that I said "teeter[ed] on the brink of unintelligibility." There had been much previous litigation concerning this statute. When the lawyer representing the landlord in a previous case inquired of an appellate panel how his client could avoid the harsh effect of the security deposit, one of the justices said from the bench, "Call it rent." Were it not for that off-the-cuff remark, I would not have had to struggle with Granberry v. Islay Investments (1984) 161 Cal.App.3d 382.
A judge's decision in a particular case can, and often does, have far-reaching consequences for many individuals. Going back again more than 30 years ago, I declared the solicitation section of Penal Code section 647(a) an unconstitutional violation of the First Amendment. The Brown Act made sexual acts between consenting adults legal. I reasoned that "if you can do it, you ought to be able to talk about it," and dismissed approximately 40 cases that charged violations of 647a. In a separate but similar case, the California Supreme Court in Pryor v. Municipal Court (1979) 25 Cal.3d 238 ruled as I did. To get an idea of the profound effect these decisions had on millions of people, I recommend you read "The Domino Effect," by Thomas F. Coleman, who, along with Jay Kohorn, argued the case in my court and the Pryor case before the Supreme Court. Their compelling briefs and cogent arguments made my job easy.
Stanley Mosk, one of California's preeminent jurists, wrote opinions that produced ripple effects permeating the state and the nation. Many of his rulings will endure for generations. But one case he decided as a young trial judge also created ripples that significantly affected many lives. Stanley Mosk's son, Court of Appeal Justice Richard Mosk, wrote a touching article in the Daily Journal, October 14, 2010, The Intersection of Two Lives, about some of the people whose lives were changed by this case, decided more than 63 years ago.
The famous United States Supreme Court decision, Shelley v. Kraemer (1948) 334 U.S. 1, holding that racially restrictive covenants in property deeds were unenforceable in courts of law, had not yet been decided. In Mosk's case, a Black family, the Dryes, purchased a house, the deed of which contained a racially restrictive covenant. When some neighborhood residents sought to enforce the Caucasian-only resident requirement, other Black families moved, but not the Dryes. They stayed to fight this injustice. They were represented by Loren Miller, the great civil rights lawyer, who later became a judge, and whose son Loren Miller became a distinguished Superior Court judge and a dear friend and colleague.
Judge Mosk ruled the covenants were an unconstitutional violation of the Fourteenth Amendment and sustained the demurrer without leave to amend. He pointed out how callous it would be to deny Mr. Drye, a decorated war hero who fought in two wars to preserve our country's freedom, the right to live in a house because of his race. The next year the United States Supreme Court decided Shelley v. Kraemer.
The Dryes stayed in the house and raised their son, whom I will never forget, and not because he and I share a first name. I met Arthur Drye on November 5, 2010. That was the day I was privileged to attend the ribbon-cutting ceremony at the new Stanley Mosk Elementary School in the West Valley. All of us in the audience in the school auditorium felt a connection with one another. You could tell, because we were all smiling, a reflection about how good we felt about the ceremony.
One of the speakers was Arthur Drye, a teacher and school administrator. He asked the students to think for a moment about their heroes. He asked them if Superman or Spiderman were heroes. I was relieved to hear the kids roar in unison, "No!" When he asked if their parents and teachers were heroes, they yelled, "Yes!" I thought to myself there is hope for the future. Drye then spoke of his heroes, his father and mother, who had the courage and character to fight for their rights, and his hero, Stanley Mosk, who made it possible for him to live in the neighborhood of his parents' choice. He spoke of the jeers and taunts he suffered in school because of his race. But, like his parents, he refused to be defeated and became a teacher and school administrator. His message: A hero stands up to bullies. We succeed by not encouraging bullies. Bullies only win if we let them.
It was an extraordinary experience to hear Arthur Drye, standing on the auditorium stage of the Stanley Mosk Elementary School, inspiring and encouraging the students, 63 years after Judge Mosk's decision. It is fitting that the downtown court civil courthouse in Los Angeles be named the Stanley Mosk Courthouse. It is an acknowledgement of his invaluable contribution to California. No doubt Stanley Mosk would be pleased with this recognition. But the grammar school that bears his name, stemming from a demurrer sustained without leave to amend over six decades ago, I suspect, would be an immense satisfaction to him and would hold a special place in his heart.
Stanley Mosk swore me in as a Municipal Court judge on Labor Day, 1975. Through his example and my association with him, he has been my mentor. Arthur Drye and I have something in common beyond our same first names. For us, Stanley Mosk is a hero.
Under the Influence-Intoxication Is Toxic
Last month, Los Angeles Times columnist Steve Lopez wrote about his recent encounter with zip, schnitzel, prune, dooby, chillums, funk, spliff, boo, snop, cheo, ganja, gunja, gunney gange, gash, gasper, griff. As long as we are on the G's, he wrote that the experience made him giggle. You are with me on this, right? He was like blowing a stick, going loco, with a goof butt, hitting the hay, howling with hooch, sparking it up, getting on with gunga. Oh dear, here we are, back on the G's. Gracious. In case I wasn't clear, Lopez was smoking reefers, weed you know, marijuana cigarettes.
And guess what? Lopez got to do it with law enforcement officers present, including the Los Angeles City Attorney. It was all part of an experiment to determine how the presence of marijuana in one's body affects driving ability. This information is particularly relevant should proposition 19, which would legalize marijuana, pass. Suffice it to say that after several 'hits," Lopez's driving skills were impaired. He also was "laughing like a hyena." When an officer asked him if he was having fun, he replied, "What, is that a crime, officer?" That reminds me of Max Beerbohm's line, "Nobody ever died of laughter." But one could die when crossing the street in front of a driver under the influence of cannabis. Marijuana can you think of any other word that has so many synonyms… other than sex?
Some law breakers get a thrill committing an illegal act. But committing a crime with impunity, with the approval of the police, is like riding your bike on the wrong side of the street when it is closed to traffic, confessing one's sins in the confession booth without a priest, being contemptuous in court before the judge takes the bench.
At one time, possession of marijuana was perceived in some quarters as a serious offense. I recall years ago, when my date and I dropped into a party shortly after I had been appointed to the Los Angeles Municipal Court, I wasn’t sure, but there seemed to be a pungent odor in the room. I received congratulations and a few high fives, but there was an obvious tension in the air. I got the feeling they couldn’t wait until we left. My date cautioned me not to breathe too deeply. She feared I might be arrested for driving under the influence. Later, an unidentified source informed me that the party “took off’ when we left. That experience taught me to be vigilant about where I went and the company I kept. Because I occasionally played the piano at jazz gigs, I made it a practice to search all the musicians’ pockets before the gig. If more than one player took a drag on a cigarette at the break, I assumed it was not because they were out of cigarette money. I was out of there. They were left to finish the set as a facsimile of the Gerry Mulligan “pianoless” quartet.
Judges are paranoid about being on the wrong side of the law. It can happen inadvertently. When judges commit an offense, even a minor one, like jaywalking, people take notice. Even among my unconventional, anti-authority friends, there is a look of disapproval when on occasion I have jaywalked. I am supposed to set an example. My columns about my notorious speeding tickets on Pacific Coast Highway have drawn considerable attention. Readers seem amused and satisfied to know I got what I deserved, a solid eight hours of traffic school.
When I became the Supervising Judge of the Los Angeles Traffic Court in 1975, I also became obnoxiously self-righteous about traffic safety. I was a cautious (euphemism for “pain in the ass”) driver. I didn’t get speeding tickets until some 25 years later. I made complete stops at stop signs, even when the streets were deserted. No need to speculate why I was out when the streets were deserted. And I can assure you that my unblemished driving record had nothing to do with my acquaintance with so many traffic officers in Los Angeles.
I will have you know it was, and probably still is, the largest traffic court in the world. It was heady being the so-called head or leader of the largest something in the world. Judge Burt Pines was then the Los Angeles City Attorney. He and I had a friendly disagreement about punishment for first time DUI (driving under the influence of alcohol) offenders. He wanted all first-time offenders to be sentenced to jail for a few days. I opted for a less draconian approach, a compelled educational program for first-time offenders with low to moderate breathalyzer readings.
The press seemed to favor my approach. I wonder why? After work I joined some reporters (that’s what they called them in those days) for some drinks at a local hangout in downtown Los Angeles. After a couple of martinis, one pointed his wet finger at me, and said something like, “You know what? You… you’re… right. That’s what you are… right.”
And then one day the court sanctioned a weekend meeting on traffic safety with ASAP–the Alcohol Safety Action Project. I still remember the acronym. Judges, city attorneys, public defenders and police personnel attended an intensive, concentrated program on alcohol abuse. At the end of the conference, we had a party. We were instructed, OK, to be more honest, invited, to drink as much as we could, and then blow into the breathalyzer test machine set up in the middle of the room. Like Steve Lopez, I could get smashed in the presence of law enforcement officers.
I have never been much of a drinker. To prove it, I used bourbon and Seven to get my BA (blood alcohol) reading to ascend. It is hard to believe, but in those days, 0.15 was considered a low reading. A defendant with a lower reading usually could plead guilty to a reduced reckless driving charge. Who knows how many drinks I had, but according to the experts, it was not that many. After about four or five drinks, I blew into the breathalyzer and registered a measly 0.11. The experts said I was on the way up to a 0.16 or maybe a 0.17. Luckily, I left the party before that occurred. When I reached my presumed 0.17, I couldn't have been a passenger, let alone a driver. That was when the toilet and I had an extended rendezvous. I recall the intricate design of the bathroom tile and thought, not bad for a hotel. Ever since then, I admire bathroom floor tile standing up.
And guess what? Lopez got to do it with law enforcement officers present, including the Los Angeles City Attorney. It was all part of an experiment to determine how the presence of marijuana in one's body affects driving ability. This information is particularly relevant should proposition 19, which would legalize marijuana, pass. Suffice it to say that after several 'hits," Lopez's driving skills were impaired. He also was "laughing like a hyena." When an officer asked him if he was having fun, he replied, "What, is that a crime, officer?" That reminds me of Max Beerbohm's line, "Nobody ever died of laughter." But one could die when crossing the street in front of a driver under the influence of cannabis. Marijuana can you think of any other word that has so many synonyms… other than sex?
Some law breakers get a thrill committing an illegal act. But committing a crime with impunity, with the approval of the police, is like riding your bike on the wrong side of the street when it is closed to traffic, confessing one's sins in the confession booth without a priest, being contemptuous in court before the judge takes the bench.
At one time, possession of marijuana was perceived in some quarters as a serious offense. I recall years ago, when my date and I dropped into a party shortly after I had been appointed to the Los Angeles Municipal Court, I wasn’t sure, but there seemed to be a pungent odor in the room. I received congratulations and a few high fives, but there was an obvious tension in the air. I got the feeling they couldn’t wait until we left. My date cautioned me not to breathe too deeply. She feared I might be arrested for driving under the influence. Later, an unidentified source informed me that the party “took off’ when we left. That experience taught me to be vigilant about where I went and the company I kept. Because I occasionally played the piano at jazz gigs, I made it a practice to search all the musicians’ pockets before the gig. If more than one player took a drag on a cigarette at the break, I assumed it was not because they were out of cigarette money. I was out of there. They were left to finish the set as a facsimile of the Gerry Mulligan “pianoless” quartet.
Judges are paranoid about being on the wrong side of the law. It can happen inadvertently. When judges commit an offense, even a minor one, like jaywalking, people take notice. Even among my unconventional, anti-authority friends, there is a look of disapproval when on occasion I have jaywalked. I am supposed to set an example. My columns about my notorious speeding tickets on Pacific Coast Highway have drawn considerable attention. Readers seem amused and satisfied to know I got what I deserved, a solid eight hours of traffic school.
When I became the Supervising Judge of the Los Angeles Traffic Court in 1975, I also became obnoxiously self-righteous about traffic safety. I was a cautious (euphemism for “pain in the ass”) driver. I didn’t get speeding tickets until some 25 years later. I made complete stops at stop signs, even when the streets were deserted. No need to speculate why I was out when the streets were deserted. And I can assure you that my unblemished driving record had nothing to do with my acquaintance with so many traffic officers in Los Angeles.
I will have you know it was, and probably still is, the largest traffic court in the world. It was heady being the so-called head or leader of the largest something in the world. Judge Burt Pines was then the Los Angeles City Attorney. He and I had a friendly disagreement about punishment for first time DUI (driving under the influence of alcohol) offenders. He wanted all first-time offenders to be sentenced to jail for a few days. I opted for a less draconian approach, a compelled educational program for first-time offenders with low to moderate breathalyzer readings.
The press seemed to favor my approach. I wonder why? After work I joined some reporters (that’s what they called them in those days) for some drinks at a local hangout in downtown Los Angeles. After a couple of martinis, one pointed his wet finger at me, and said something like, “You know what? You… you’re… right. That’s what you are… right.”
And then one day the court sanctioned a weekend meeting on traffic safety with ASAP–the Alcohol Safety Action Project. I still remember the acronym. Judges, city attorneys, public defenders and police personnel attended an intensive, concentrated program on alcohol abuse. At the end of the conference, we had a party. We were instructed, OK, to be more honest, invited, to drink as much as we could, and then blow into the breathalyzer test machine set up in the middle of the room. Like Steve Lopez, I could get smashed in the presence of law enforcement officers.
I have never been much of a drinker. To prove it, I used bourbon and Seven to get my BA (blood alcohol) reading to ascend. It is hard to believe, but in those days, 0.15 was considered a low reading. A defendant with a lower reading usually could plead guilty to a reduced reckless driving charge. Who knows how many drinks I had, but according to the experts, it was not that many. After about four or five drinks, I blew into the breathalyzer and registered a measly 0.11. The experts said I was on the way up to a 0.16 or maybe a 0.17. Luckily, I left the party before that occurred. When I reached my presumed 0.17, I couldn't have been a passenger, let alone a driver. That was when the toilet and I had an extended rendezvous. I recall the intricate design of the bathroom tile and thought, not bad for a hotel. Ever since then, I admire bathroom floor tile standing up.
Hooked on Language
On commercial television, you cannot use “foul” language in dialog or in the title of a show. I suppose that is why the new comedy series on CBS is entitled "$#*! My Dad Says." The symbols "symbolize" "forbidden" or "offensive" language. If we peel back the symbols, what word or words do you think will be revealed? Will we be repelled by some horrifically repugnant language, or undisturbed by an innocuous phrase like “horseshit,” or the more popular “bullshit”? But it could be something a little more risqué. I read in the New York Times last week that the geniuses at CBS had not taken into account that scads of viewers with DVR’s could not prerecord the series because many DVR’s do not recognize symbols. This oversight skewed their ratings. Apprehension over language can lose or make money.
Maybe that is what drives the effort in some quarters to mask language. Everyone, well at least most everyone I know, uses a racy word now and then, a word that could offend someone’s sensibilities. Perhaps rules that censor language on television and radio are helpful to sponsors who do not want to offend the viewers they coax to buy their products. Shows on noncommercial television, like HBO, for example, have dialog and scenes that would make Howard Stern blush.
But judges can write opinions filled with vile epithets and boorish obscenities, uttered, indeed screamed, without the slightest attention to grammar or syntax. They simply quote from trial transcripts. That is the real world.
A strong expletive can be salutary. About 32 years ago, I was presiding over a criminal trial in Los Angeles Municipal Court. Who remembers what the case was about. The courtroom was packed with witnesses and court watchers. And who remembers why I was in such a bad mood. My mood must have been terrible, because the tension was so palpable, so high pitched, that stray dogs within a mile of the courthouse were barking their heads off. I snapped at the lawyers. “Sustained,” voiced almost simultaneously with the objection. My tone was sharp, clipped, reflecting annoyance and impatience.
The back door opened and Linda Schwartz, a public defender who was a good friend, walked into the courtroom to calendar a matter with the clerk. Apparently she could not help but sense the tension. At the conclusion of a witness's testimony, she said, “May I approach the bench, Your Honor?”
“Yes, you may,” I said, as puzzled as were the attorneys. She opened the small swinging gates, passed by the clerk, and approached the bench from the side. I leaned over and she rested one foot on the first of the three steps that led up to the bench. “You are acting like a real …." I hesitate to use the word, not because I am squeamish, but because she was right. You probably can guess what she said. Rather not? It was the same expression used by George Bush to describe a New York Times reporter he disliked. He voiced his opinion to Dick Cheney when he thought the microphone was off during a Labor Day campaign rally. Only Bush emphasized the derisive phrase describing the reporter with the adjectives, "major league." Some people were overwrought by the expression. I said, “Big #*@^ing deal.”
It took a moment for Linda's assessment to sink in. I called a brief recess and snuck into my chambers. I laughed to hide my embarrassment. Linda walked in and I asked her how she was going to spend her next five days in jail. But I could not hold her in contempt when I was the one acting contemptuously. After thanking her for the rude awakening, I let her off with a warning to myself not to do it again. I took the bench and resumed the trial. My demeanor must have said it all, because I could feel the atmosphere cool down.
It just proves that judges, like everyone else, can be angry, depressed, frustrated and act like major-league… jerks (a euphemism). Sometimes, a swiftly delivered expletive (term make popular by another President) is a good way to snap out of it.
I know a judge who is so well balanced, so insightful, so attuned to people that she never needs to be on the receiving end of an expletive. Marin County Superior Court Judge Lynn Duryee is well known and admired throughout the state. She has written columns for the Daily Journal and writes a regular column for The Bench, the official newsletter of the California Judges Association. She was past Dean of California’s prestigious Judges College. Judge Duryee has directed her talents to writing a novel, recently published, “Hooked on Drug Court.”
This engrossing book is about a case in drug court. The characters are the people involved in the case the juvenile, her parents, the probation officer, and the judge. In the hilarious comedy "Noises Off," playwright Michael Frayn takes us behind the scenes to see the actors' lives off stage. But a court proceeding, while superficially sharing some aspects of theater, takes place on a stage where litigants and witnesses would rather not be. Judge Duryee takes us behind the scenes of the formal court proceedings and reveals the poignant drama occurring when court is not in session. She probes deeply into the characters' lives and psyches to reveal the chain of events that brought them to court. They become caught up in the court system in large part because they are caught up in their fears, misapprehensions, angers, and destructive patterns of behavior.
A fifteen-year-old girl, Andy, winds up in Juvenile Court after she is busted for being under the influence during a weekend visitation with her divorced father who is engaged in World War III with Andy's mother, his ex-wife. Thrown into the maelstrom are a seemingly sclerotic judge with a complicated love life, the probation officer, and other players who bring mystery and additional conflict to the drama. They inhabit the pages of a book you don't want to stop reading. All are involved in a journey of self-discovery, and the road has its potholes, detours, and chasms. Nothing is watered down. It's the real thing. It's authentic. Duryee's unerring ear captures the speech patterns of real people, not an expletive deleted. The title of each chapter is a character's name. We know them intimately through their interior monologs and through their interaction with other characters. We are drawn into their world and we care about them.
The main character Andy is a modern-day Holden Caufield. Only her angst comes not from her sensitivity to the phonies in the world, but from the pain engendered by her parents' conflicts, which in turn lead to her debilitating drug use. Andy is exasperating, funny, likeable, loveable, and Duryee deftly tells her story so that we root for her, but at times want to scold and shake her too. We feel even more exasperation with her parents and, yes, also the judge. But they are full dimensional, and we cannot help but care about them.
Judge Lynn Duryee gives us a three-dimensional view of a case and the people it touches. Their journey toward understanding is hard, painful, joyful, frustrating, and fulfilling. It's one we all take no matter who we are or what is our position in life. It is the journey Socrates tells us is the only journey worth our while, the journey of self-knowledge. The invaluable insights Duryee provides along the way should help us on our own journey. "Hooked On Drug Court" is available on Amazon.com.
Maybe that is what drives the effort in some quarters to mask language. Everyone, well at least most everyone I know, uses a racy word now and then, a word that could offend someone’s sensibilities. Perhaps rules that censor language on television and radio are helpful to sponsors who do not want to offend the viewers they coax to buy their products. Shows on noncommercial television, like HBO, for example, have dialog and scenes that would make Howard Stern blush.
But judges can write opinions filled with vile epithets and boorish obscenities, uttered, indeed screamed, without the slightest attention to grammar or syntax. They simply quote from trial transcripts. That is the real world.
A strong expletive can be salutary. About 32 years ago, I was presiding over a criminal trial in Los Angeles Municipal Court. Who remembers what the case was about. The courtroom was packed with witnesses and court watchers. And who remembers why I was in such a bad mood. My mood must have been terrible, because the tension was so palpable, so high pitched, that stray dogs within a mile of the courthouse were barking their heads off. I snapped at the lawyers. “Sustained,” voiced almost simultaneously with the objection. My tone was sharp, clipped, reflecting annoyance and impatience.
The back door opened and Linda Schwartz, a public defender who was a good friend, walked into the courtroom to calendar a matter with the clerk. Apparently she could not help but sense the tension. At the conclusion of a witness's testimony, she said, “May I approach the bench, Your Honor?”
“Yes, you may,” I said, as puzzled as were the attorneys. She opened the small swinging gates, passed by the clerk, and approached the bench from the side. I leaned over and she rested one foot on the first of the three steps that led up to the bench. “You are acting like a real …." I hesitate to use the word, not because I am squeamish, but because she was right. You probably can guess what she said. Rather not? It was the same expression used by George Bush to describe a New York Times reporter he disliked. He voiced his opinion to Dick Cheney when he thought the microphone was off during a Labor Day campaign rally. Only Bush emphasized the derisive phrase describing the reporter with the adjectives, "major league." Some people were overwrought by the expression. I said, “Big #*@^ing deal.”
It took a moment for Linda's assessment to sink in. I called a brief recess and snuck into my chambers. I laughed to hide my embarrassment. Linda walked in and I asked her how she was going to spend her next five days in jail. But I could not hold her in contempt when I was the one acting contemptuously. After thanking her for the rude awakening, I let her off with a warning to myself not to do it again. I took the bench and resumed the trial. My demeanor must have said it all, because I could feel the atmosphere cool down.
It just proves that judges, like everyone else, can be angry, depressed, frustrated and act like major-league… jerks (a euphemism). Sometimes, a swiftly delivered expletive (term make popular by another President) is a good way to snap out of it.
I know a judge who is so well balanced, so insightful, so attuned to people that she never needs to be on the receiving end of an expletive. Marin County Superior Court Judge Lynn Duryee is well known and admired throughout the state. She has written columns for the Daily Journal and writes a regular column for The Bench, the official newsletter of the California Judges Association. She was past Dean of California’s prestigious Judges College. Judge Duryee has directed her talents to writing a novel, recently published, “Hooked on Drug Court.”
This engrossing book is about a case in drug court. The characters are the people involved in the case the juvenile, her parents, the probation officer, and the judge. In the hilarious comedy "Noises Off," playwright Michael Frayn takes us behind the scenes to see the actors' lives off stage. But a court proceeding, while superficially sharing some aspects of theater, takes place on a stage where litigants and witnesses would rather not be. Judge Duryee takes us behind the scenes of the formal court proceedings and reveals the poignant drama occurring when court is not in session. She probes deeply into the characters' lives and psyches to reveal the chain of events that brought them to court. They become caught up in the court system in large part because they are caught up in their fears, misapprehensions, angers, and destructive patterns of behavior.
A fifteen-year-old girl, Andy, winds up in Juvenile Court after she is busted for being under the influence during a weekend visitation with her divorced father who is engaged in World War III with Andy's mother, his ex-wife. Thrown into the maelstrom are a seemingly sclerotic judge with a complicated love life, the probation officer, and other players who bring mystery and additional conflict to the drama. They inhabit the pages of a book you don't want to stop reading. All are involved in a journey of self-discovery, and the road has its potholes, detours, and chasms. Nothing is watered down. It's the real thing. It's authentic. Duryee's unerring ear captures the speech patterns of real people, not an expletive deleted. The title of each chapter is a character's name. We know them intimately through their interior monologs and through their interaction with other characters. We are drawn into their world and we care about them.
The main character Andy is a modern-day Holden Caufield. Only her angst comes not from her sensitivity to the phonies in the world, but from the pain engendered by her parents' conflicts, which in turn lead to her debilitating drug use. Andy is exasperating, funny, likeable, loveable, and Duryee deftly tells her story so that we root for her, but at times want to scold and shake her too. We feel even more exasperation with her parents and, yes, also the judge. But they are full dimensional, and we cannot help but care about them.
Judge Lynn Duryee gives us a three-dimensional view of a case and the people it touches. Their journey toward understanding is hard, painful, joyful, frustrating, and fulfilling. It's one we all take no matter who we are or what is our position in life. It is the journey Socrates tells us is the only journey worth our while, the journey of self-knowledge. The invaluable insights Duryee provides along the way should help us on our own journey. "Hooked On Drug Court" is available on Amazon.com.
Monday, August 16, 2010
The Only Thing Certain Is Uncertainty- But I Am Not Certain
Chief Justice Ronald George’s announcement that he will not be seeking re-election stunned most of us in the legal community. If someone had asked me before the press release about his retirement, “Think the Chief will step down soon?” my immediate response would have been, “Not a chance.” But even without his well-stated reasons and his candid interview with Larry Mantle on local FM station KPPC, it all makes sense. It is hard to imagine his absence from the judiciary, but through the programs and procedures he has implemented in California’s court system, his presence will be felt long after his departure. He achieved the goals he set for himself.
I must admit, when speculation focused on Chief George’s replacement, Justice Tani Cantil-Sakauye was not a name that immediately came to my mind, and certainly not to the minds of the people the media sought to interview. Of course none of us knew what we were talking about. We were just guessing who we thought the Governor might pick based on inadmissible, speculative evidence. Objection sustained! And in our discussions (a euphemism for gossip), like the lawyers and judges we are, we marshaled plausible arguments to support our suppositions.
And then when I received the news that Justice Cantil-Sakauye was the nominee, it immediately made sense, just as the Chief’s retirement made sense after a moment's reflection following his announcement. Justice Cantil-Sakauye is a member of the Judicial Council and chairs the committee on financial accountability. The judiciary budget is somewhere around $4 billion. Gulp! Please keep this under your hat.
A few years ago, Justice Canti-Sayauye sat in our courtroom in Ventura with two other judges as a special master on a Judicial Performance Commission matter. In the evening, she, her colleagues on the case, and the justices from our division had dinner. We ordered an array of different-priced dinners. Tani figured out how to divide the check, a seemingly insuperable task in light of the makeup of the dinner party. She was firm, yet tactful. It is no wonder that she is an able administrator who has mastered arcane details of the judiciary’s budget vis-Ã -vis the state’s budgetary shortfalls.
And she is likely to keep in place many, if not all, of the innovations and programs Chief George instituted. Her opinions are solid and well crafted. She is open-minded, down to earth, a good listener, warm and gracious, not impressed with pomp or status, and has a disarming twinkle in her eye. Armed with this solid evidence, I safely can predict she will be a superb Chief Justice.
This sudden changing of the guard makes clear that we cannot predict what the future holds, and that patient reflection often leads to a clear analysis. This avoids a hasty jump to a flawed conclusion. A few months ago, my wife, Barbara, and I were traveling westbound in the center lane of Olympic Blvd., in an area of Los Angeles known as Koreatown. Without warning, a van suddenly moved into our lane directly in front of us, causing me to slam on the brakes. Our car pitched forward, stopping just inches behind the offending van. Packages and our coats in the back seat slid to the floor. Our bodies strained forward against the seat belts.
(Expurgated version.) “Whew, that was a close call,” I said aloud. At that point I was more relieved than angry. I pulled into the right lane of traffic and soon I was adjacent to the van that had pulled in front of us. I glanced at the driver who was looking at me with a big smile on his face. In fact, he was laughing.
I sped up, and so did he. I felt my pulse quicken and the dam of anger about to burst, sending roiling waves of fury to engulf any and all in the path of the flood, a phenomena Barbara has witnessed on various occasions. “That idiot is laughing at us,” I said in a voice an octave above normal. “Just ignore him,” she said, the equivalence of a finger in the dike. We pulled up to a stop light, and, a moment later, there he was, Mr. Smiley, right next to us. His passenger window was down. He gestured for me to roll down my window. It was noisy, and I couldn’t hear him that well, but his words were so emphatic that I could read his lips. “I’m so sorry,” he said. The adrenalin rush subsided, and the turbulent waters receded. We carried on the remainder of the short conversation in sign language.
I pointed to my head to tell him that I thought he was laughing at us after cutting us off and almost causing an accident. He nodded to say that he understood. When the light turned green, we were both smiling. We waved good-bye to one another, two good friends who will never see one another again. For a minute or two, neither Barbara nor I spoke. At that moment, I had nothing to say, but her look told me there was a lesson to be learned here. Her remark confirmed that I was at least right about that perception.
"There's a lesson to be learned here," she said.
"Does my new best friend who just drove off know the lesson?" I asked.
"You will have to ask him," she said.
"But I will never see him again."
"That's true," she said. "But considering that he followed us to apologize, he's not the one who needs the lesson."
So I learned the lesson that I keep learning over and over again. Each day we are confronted with seeming miscues that can lead us in the wrong direction. An open mind, vigilance, and measured skepticism will keep you from diving into a shallow pool good advice to judges and lawyers, whether reading a brief, a motion, examining a witness, or interviewing a client. You think you know everything, how things will turn out, what will happen, and then the carpet is pulled out from under you and the unexpected happens. But when you look back, you see what happened was not all that unexpected. In fact, it makes perfect sense. In extreme situations, what made seeming sense at the time, in retrospect, was foolhardy and painful to accept. Investors with Bernie Madoff come to mind.
This all leads to an inescapable conclusion: a key ingredient of life is uncertainty. In fact, the only certainty is death. Taxes used to be the other certainty, but after a review of Congress and the State Legislature, I am not so certain.
But oddly, I found that death's certainty is a good way to handle the lesson I learned from my encounter on Olympic Blvd. I gained this insight from Timothy Tosta's valuable book "#DEATHtweet," published by THINKaha (2010). The cover accurately tells the reader that the book is a guide to "A Well-Lived Life through 140 Perspectives on Death and Its Teachings."
Tosta, a land-use and environmental lawyer, is well known to Daily Journal readers through his columns and lectures about how to live a fulfilling, balanced life. Yes, this includes lawyers working in a stressful environment. I bet it also includes judges, though I might get an argument about the "stressful environment" part.
Tosta's quest to "living life to its fullest" and the insights he gained were engendered when he was diagnosed with terminal cancer. That he has been with us for close to two decades since that prognosis proves that uncertainty is pervasive. His more recent work as a hospice volunteer helped sharpen the depth of his insights.
Tosta reasons that because death is certain, "[i]t teaches us how to live in our remaining time." His book treats, or should I say "tweets," us to 140 pithy insights that one will read and go back to again and again. Each of these terse lessons resonate when applied against the backdrop of our daily experiences. Tweet 4 teaches that "[t]ruly living your life is the best preparation for death." Read on for ways to achieve this goal. Tweet 53 is one lesson I am working on to perfect, "When you no longer can change a situation, you always can change yourself." When applied to a conference with my colleagues at the court, I would add…"and you always can dissent."
Tweets 70 and 71 pose provocative questions and challenges: "If this part of your life were a sport, how would you get 'in shape' to play?" And "Can you become the best performer ever in your life's sport?" The tweets on listening help establish understanding and forging relationships, whether they be with clients, friends or loved ones.
My impression of our soon-to-be Chief Justice, Tani Cantil-Sakauye, is that she is in tune with many of Tosta's life lessons. Tweet 72 seems particularly applicable to her new role as California's Chief Justice: "Think, analyze, and formulate a program. Break things down into manageable tasks and achievable goals. Allow yourself to succeed." No doubt in my mind she will.
I must admit, when speculation focused on Chief George’s replacement, Justice Tani Cantil-Sakauye was not a name that immediately came to my mind, and certainly not to the minds of the people the media sought to interview. Of course none of us knew what we were talking about. We were just guessing who we thought the Governor might pick based on inadmissible, speculative evidence. Objection sustained! And in our discussions (a euphemism for gossip), like the lawyers and judges we are, we marshaled plausible arguments to support our suppositions.
And then when I received the news that Justice Cantil-Sakauye was the nominee, it immediately made sense, just as the Chief’s retirement made sense after a moment's reflection following his announcement. Justice Cantil-Sakauye is a member of the Judicial Council and chairs the committee on financial accountability. The judiciary budget is somewhere around $4 billion. Gulp! Please keep this under your hat.
A few years ago, Justice Canti-Sayauye sat in our courtroom in Ventura with two other judges as a special master on a Judicial Performance Commission matter. In the evening, she, her colleagues on the case, and the justices from our division had dinner. We ordered an array of different-priced dinners. Tani figured out how to divide the check, a seemingly insuperable task in light of the makeup of the dinner party. She was firm, yet tactful. It is no wonder that she is an able administrator who has mastered arcane details of the judiciary’s budget vis-Ã -vis the state’s budgetary shortfalls.
And she is likely to keep in place many, if not all, of the innovations and programs Chief George instituted. Her opinions are solid and well crafted. She is open-minded, down to earth, a good listener, warm and gracious, not impressed with pomp or status, and has a disarming twinkle in her eye. Armed with this solid evidence, I safely can predict she will be a superb Chief Justice.
This sudden changing of the guard makes clear that we cannot predict what the future holds, and that patient reflection often leads to a clear analysis. This avoids a hasty jump to a flawed conclusion. A few months ago, my wife, Barbara, and I were traveling westbound in the center lane of Olympic Blvd., in an area of Los Angeles known as Koreatown. Without warning, a van suddenly moved into our lane directly in front of us, causing me to slam on the brakes. Our car pitched forward, stopping just inches behind the offending van. Packages and our coats in the back seat slid to the floor. Our bodies strained forward against the seat belts.
(Expurgated version.) “Whew, that was a close call,” I said aloud. At that point I was more relieved than angry. I pulled into the right lane of traffic and soon I was adjacent to the van that had pulled in front of us. I glanced at the driver who was looking at me with a big smile on his face. In fact, he was laughing.
I sped up, and so did he. I felt my pulse quicken and the dam of anger about to burst, sending roiling waves of fury to engulf any and all in the path of the flood, a phenomena Barbara has witnessed on various occasions. “That idiot is laughing at us,” I said in a voice an octave above normal. “Just ignore him,” she said, the equivalence of a finger in the dike. We pulled up to a stop light, and, a moment later, there he was, Mr. Smiley, right next to us. His passenger window was down. He gestured for me to roll down my window. It was noisy, and I couldn’t hear him that well, but his words were so emphatic that I could read his lips. “I’m so sorry,” he said. The adrenalin rush subsided, and the turbulent waters receded. We carried on the remainder of the short conversation in sign language.
I pointed to my head to tell him that I thought he was laughing at us after cutting us off and almost causing an accident. He nodded to say that he understood. When the light turned green, we were both smiling. We waved good-bye to one another, two good friends who will never see one another again. For a minute or two, neither Barbara nor I spoke. At that moment, I had nothing to say, but her look told me there was a lesson to be learned here. Her remark confirmed that I was at least right about that perception.
"There's a lesson to be learned here," she said.
"Does my new best friend who just drove off know the lesson?" I asked.
"You will have to ask him," she said.
"But I will never see him again."
"That's true," she said. "But considering that he followed us to apologize, he's not the one who needs the lesson."
So I learned the lesson that I keep learning over and over again. Each day we are confronted with seeming miscues that can lead us in the wrong direction. An open mind, vigilance, and measured skepticism will keep you from diving into a shallow pool good advice to judges and lawyers, whether reading a brief, a motion, examining a witness, or interviewing a client. You think you know everything, how things will turn out, what will happen, and then the carpet is pulled out from under you and the unexpected happens. But when you look back, you see what happened was not all that unexpected. In fact, it makes perfect sense. In extreme situations, what made seeming sense at the time, in retrospect, was foolhardy and painful to accept. Investors with Bernie Madoff come to mind.
This all leads to an inescapable conclusion: a key ingredient of life is uncertainty. In fact, the only certainty is death. Taxes used to be the other certainty, but after a review of Congress and the State Legislature, I am not so certain.
But oddly, I found that death's certainty is a good way to handle the lesson I learned from my encounter on Olympic Blvd. I gained this insight from Timothy Tosta's valuable book "#DEATHtweet," published by THINKaha (2010). The cover accurately tells the reader that the book is a guide to "A Well-Lived Life through 140 Perspectives on Death and Its Teachings."
Tosta, a land-use and environmental lawyer, is well known to Daily Journal readers through his columns and lectures about how to live a fulfilling, balanced life. Yes, this includes lawyers working in a stressful environment. I bet it also includes judges, though I might get an argument about the "stressful environment" part.
Tosta's quest to "living life to its fullest" and the insights he gained were engendered when he was diagnosed with terminal cancer. That he has been with us for close to two decades since that prognosis proves that uncertainty is pervasive. His more recent work as a hospice volunteer helped sharpen the depth of his insights.
Tosta reasons that because death is certain, "[i]t teaches us how to live in our remaining time." His book treats, or should I say "tweets," us to 140 pithy insights that one will read and go back to again and again. Each of these terse lessons resonate when applied against the backdrop of our daily experiences. Tweet 4 teaches that "[t]ruly living your life is the best preparation for death." Read on for ways to achieve this goal. Tweet 53 is one lesson I am working on to perfect, "When you no longer can change a situation, you always can change yourself." When applied to a conference with my colleagues at the court, I would add…"and you always can dissent."
Tweets 70 and 71 pose provocative questions and challenges: "If this part of your life were a sport, how would you get 'in shape' to play?" And "Can you become the best performer ever in your life's sport?" The tweets on listening help establish understanding and forging relationships, whether they be with clients, friends or loved ones.
My impression of our soon-to-be Chief Justice, Tani Cantil-Sakauye, is that she is in tune with many of Tosta's life lessons. Tweet 72 seems particularly applicable to her new role as California's Chief Justice: "Think, analyze, and formulate a program. Break things down into manageable tasks and achievable goals. Allow yourself to succeed." No doubt in my mind she will.
Tuesday, May 04, 2010
Goodbye To Gene Lees, An Extraordinary Writer
Last week a good friend of mine, Gene Lees, passed away. He was one of the nation's great jazz critics and lyricists. His output was prodigious. He was a newspaper columnist, former editor of DownBeat Magazine, an author of numerous biographies that included Dizzy Gillespie, Woody Herman, Oscar Peterson and Johnny Mercer. He had just put the finishing touches on a biography of Artie Shaw shortly before his death. He also wrote novels, essays, articles, and a sui generis jazz newsletter filled with his reflections on music, philosophy, literature, history and whatever else he found interesting.
Gene could elucidate complex ideas with lucidity and clarity. Through example, he taught me that the course title “legal writing” is a misnomer. All writing, particularly expository writing, whether legal or otherwise, share much in common. One has to write for the reader, not for the egotistical writer. The writer's well-crafted piece engages and enlightens the reader. We lawyers and judges have a good deal to learn from Gene Lees.
An example of Gene's writing appeared in a touching obituary by Elaine Woo in the Los Angeles Times, on April 24, 2010: "In his piece 'Waiting for Dizzy,' [Gene] wrote [of Dizzy Gillespie]: 'There is a gesture he has, a motion, that always reminds me of a great batter leaning into a hit. He has a way of throwing one foot forward, putting his head down a bit as he silently runs the valves, and then the cheeks bloom out in the way that has mystified his dentist for years, and he hits into the solo. When that foot goes forward like that, you know that John Birks Gillespie is no longer clowning. Stand back.'"
I never believed all that much in destiny, but through a series of events beginning in my early childhood, I think I was destined to meet the redoubtable Gene Lees.
When I was a kid, I studied the piano on and off. My parents were hoping I would be a lawyer or a doctor not, God forbid, a musician. In a previous column I mentioned that we lived at Venice beach in the 1940’s. Gas was rationed because of the war. We were not important enough to have a C sticker on our 1941 Plymouth. You had to be someone important, like a doctor, or maybe a judge, to get a C sticker. Oddly enough, an A sticker meant our gas allotment was severely rationed because use of our car was "nonessential."
My parents were friends of a married couple, the Buhais, who, as I recall, were political activists, champions of social justice. I do not remember their first names. I was only five years old. Their young daughter Harriet, for whom the Harriet Buhai foundation is named, used to babysit me when my parents went out for the evening. They couldn’t have gone far with an A sticker. I wonder if at that time Harriet had any notion that she would become a heroic lawyer for the underprivileged and the disadvantaged. At that time my goal was to get through the day committing as much mischief as possible.
Two of the great swing bands of that era were Benny Goodman and Artie Shaw. Both bands were reputed to have appeared during the 40’s at the dance hall on Lick Pier, less than a mile from where we lived. As I grew older, I became more and more interested in jazz and listened, almost obsessively, to Goodman. But later, I came to realize the extraordinary musicianship of Shaw.
Harriet Buhai went on to her calling, and I toyed with the idea of going into music. But, as I became more mature (never reaching full maturity), I made a decision. To the relief of my parents, and the music world in general, I decided against a career in music. Instead, I went to law school where, in the practice of law, I wound up doing the same thing I would have been doing as a musician: improvising late at night.
I never dreamed I would become a judge. Do you think, maybe deep in my unconscious, the A gas ration made me strive for a judicial appointment?
At some time in my early judicial career I became friends with Ron Schoenberg, now a retired judge of the Los Angeles Superior Court. Ron’s father was renowned composer Arnold Schoenberg, a colossus who revolutionized music in the 20th century with the 12-tone system. When he left Austria in the 1930’s to escape Hitler, he settled in Pacific Palisades. Because he was a foreign national, U.S. laws prevented him from immediately receiving royalties for his compositions. Artie Shaw pledged his royalties to the government as security until Schoenberg could be cleared to receive the royalties due him. Ron and his brother Larry, now a retired math instructor, became friends with Shaw. Because of my interest in jazz, the Schoenbergs introduced me to Shaw and we became friends.
My "cousin" through marriage, the great jazz pianist and arranger Ray Sherman, sent me a gift subscription to Gene's "Jazz Letter," which contained an incisive three-part series about Artie Shaw. I e mailed Gene about my impressions of Shaw which he published. I then discovered Gene lived in Ojai, not far from the courthouse where I preside. Gene, his wife Janet, their friend, violin virtuoso Yue Deng, and I became friends and shared a warehouse of stories over a series of lunches.
Gene's views on journalistic writing are useful to lawyers and judges. I usually follow a self-imposed rule that if a sentence contains more than 25 words, it is probably too long. Gene told me he worked for a newspaper that had a similar rule with an eleven-word maximum. These rules at best are guidelines, and exceptions often predominate. But they keep us mindful of the virtue of simplicity and of making the piece an organic whole that cannot be cut.
When Gene was a columnist on the arts for the Louisville Times, he wrote his pieces so they could not be cut from the end, a common practice in newspapers. He went the further step in crafting pieces that could not be cut at all. Good advice to lawyers writing motions and briefs, which should be brief. Gene praised writer Jack Woodford who styled himself a "hack." Maybe so, but Gene said he learned from Woodford that whether you are writing fiction or nonfiction, you should think of a "chain" structure to the narrative. "By the end of the first chapter you must pose a question that the reader wants answered. In the next chapter you satisfy that desire but not before setting up another question and so on." Of course we do not write novels…. I take that back. It seems as if every other lawyer and judge here and there is working on a novel. Heaven help us.
But what judges and lawyers must keep in mind is Gene's dictum that we have little space in which to capture the reader's interest. In a short story, or a trial or appellate brief, some say the writer must capture the reader's interest in the first paragraph. Gene said, "The hell with that. You've got one line." He recalled his favorite opening lines. Melville's "Call me Ishmael," and Rafael Sabatini's "He was born with a gift of laughter and a sense that the world was mad." Gene wrote a short story he sold to a major magazine that began with this line: "There were those who thought he was mostly a son of a bitch, but I thought he was all son of a bitch."
These opening lines surely capture the reader's interest. But I advise appellate lawyers in their briefs not to use Gene's opening line to describe the trial judge. We are not writing fiction, though some briefs I have read unfortunately fall in that category. But in relating the facts of a case, we could do well following Gene's example.
I close with a goodbye to my friend. I will miss hearing his wonderful stories over lunch, but he will always be in touch through the enduring works he leaves behind.
Gene could elucidate complex ideas with lucidity and clarity. Through example, he taught me that the course title “legal writing” is a misnomer. All writing, particularly expository writing, whether legal or otherwise, share much in common. One has to write for the reader, not for the egotistical writer. The writer's well-crafted piece engages and enlightens the reader. We lawyers and judges have a good deal to learn from Gene Lees.
An example of Gene's writing appeared in a touching obituary by Elaine Woo in the Los Angeles Times, on April 24, 2010: "In his piece 'Waiting for Dizzy,' [Gene] wrote [of Dizzy Gillespie]: 'There is a gesture he has, a motion, that always reminds me of a great batter leaning into a hit. He has a way of throwing one foot forward, putting his head down a bit as he silently runs the valves, and then the cheeks bloom out in the way that has mystified his dentist for years, and he hits into the solo. When that foot goes forward like that, you know that John Birks Gillespie is no longer clowning. Stand back.'"
I never believed all that much in destiny, but through a series of events beginning in my early childhood, I think I was destined to meet the redoubtable Gene Lees.
When I was a kid, I studied the piano on and off. My parents were hoping I would be a lawyer or a doctor not, God forbid, a musician. In a previous column I mentioned that we lived at Venice beach in the 1940’s. Gas was rationed because of the war. We were not important enough to have a C sticker on our 1941 Plymouth. You had to be someone important, like a doctor, or maybe a judge, to get a C sticker. Oddly enough, an A sticker meant our gas allotment was severely rationed because use of our car was "nonessential."
My parents were friends of a married couple, the Buhais, who, as I recall, were political activists, champions of social justice. I do not remember their first names. I was only five years old. Their young daughter Harriet, for whom the Harriet Buhai foundation is named, used to babysit me when my parents went out for the evening. They couldn’t have gone far with an A sticker. I wonder if at that time Harriet had any notion that she would become a heroic lawyer for the underprivileged and the disadvantaged. At that time my goal was to get through the day committing as much mischief as possible.
Two of the great swing bands of that era were Benny Goodman and Artie Shaw. Both bands were reputed to have appeared during the 40’s at the dance hall on Lick Pier, less than a mile from where we lived. As I grew older, I became more and more interested in jazz and listened, almost obsessively, to Goodman. But later, I came to realize the extraordinary musicianship of Shaw.
Harriet Buhai went on to her calling, and I toyed with the idea of going into music. But, as I became more mature (never reaching full maturity), I made a decision. To the relief of my parents, and the music world in general, I decided against a career in music. Instead, I went to law school where, in the practice of law, I wound up doing the same thing I would have been doing as a musician: improvising late at night.
I never dreamed I would become a judge. Do you think, maybe deep in my unconscious, the A gas ration made me strive for a judicial appointment?
At some time in my early judicial career I became friends with Ron Schoenberg, now a retired judge of the Los Angeles Superior Court. Ron’s father was renowned composer Arnold Schoenberg, a colossus who revolutionized music in the 20th century with the 12-tone system. When he left Austria in the 1930’s to escape Hitler, he settled in Pacific Palisades. Because he was a foreign national, U.S. laws prevented him from immediately receiving royalties for his compositions. Artie Shaw pledged his royalties to the government as security until Schoenberg could be cleared to receive the royalties due him. Ron and his brother Larry, now a retired math instructor, became friends with Shaw. Because of my interest in jazz, the Schoenbergs introduced me to Shaw and we became friends.
My "cousin" through marriage, the great jazz pianist and arranger Ray Sherman, sent me a gift subscription to Gene's "Jazz Letter," which contained an incisive three-part series about Artie Shaw. I e mailed Gene about my impressions of Shaw which he published. I then discovered Gene lived in Ojai, not far from the courthouse where I preside. Gene, his wife Janet, their friend, violin virtuoso Yue Deng, and I became friends and shared a warehouse of stories over a series of lunches.
Gene's views on journalistic writing are useful to lawyers and judges. I usually follow a self-imposed rule that if a sentence contains more than 25 words, it is probably too long. Gene told me he worked for a newspaper that had a similar rule with an eleven-word maximum. These rules at best are guidelines, and exceptions often predominate. But they keep us mindful of the virtue of simplicity and of making the piece an organic whole that cannot be cut.
When Gene was a columnist on the arts for the Louisville Times, he wrote his pieces so they could not be cut from the end, a common practice in newspapers. He went the further step in crafting pieces that could not be cut at all. Good advice to lawyers writing motions and briefs, which should be brief. Gene praised writer Jack Woodford who styled himself a "hack." Maybe so, but Gene said he learned from Woodford that whether you are writing fiction or nonfiction, you should think of a "chain" structure to the narrative. "By the end of the first chapter you must pose a question that the reader wants answered. In the next chapter you satisfy that desire but not before setting up another question and so on." Of course we do not write novels…. I take that back. It seems as if every other lawyer and judge here and there is working on a novel. Heaven help us.
But what judges and lawyers must keep in mind is Gene's dictum that we have little space in which to capture the reader's interest. In a short story, or a trial or appellate brief, some say the writer must capture the reader's interest in the first paragraph. Gene said, "The hell with that. You've got one line." He recalled his favorite opening lines. Melville's "Call me Ishmael," and Rafael Sabatini's "He was born with a gift of laughter and a sense that the world was mad." Gene wrote a short story he sold to a major magazine that began with this line: "There were those who thought he was mostly a son of a bitch, but I thought he was all son of a bitch."
These opening lines surely capture the reader's interest. But I advise appellate lawyers in their briefs not to use Gene's opening line to describe the trial judge. We are not writing fiction, though some briefs I have read unfortunately fall in that category. But in relating the facts of a case, we could do well following Gene's example.
I close with a goodbye to my friend. I will miss hearing his wonderful stories over lunch, but he will always be in touch through the enduring works he leaves behind.
Tuesday, April 06, 2010
PLEASE, NO SURPRISES
Courts interpret the law. It is expected, or at least hoped, that they do so in a way that provides the public, from which come litigants and their counsel, a reasonable degree of predictability, if not certainty. From this dictum one would expect that surprise would be an unwelcome guest whose brash presence could be embarrassing to counsel advising their clients. But to quote Heraclitus, the Greek philosopher, which I do, with annoying regularity, “Northing endures but change.” And because the law is not static and immutable, and therefore subject to Heraclitus’ maxim, it should come as no surprise that judicial decisions are often surprising. But what is an unwelcome surprise decision to some may be a decision hoped for, if not expected, to others. “Surprise,” like obscenity, is in the eye of the beholder.
In his confirmation hearing, Chief Justice Roberts saw his role as a referee calling “balls and strikes.” But that assumes that laws, like the rules of baseball, are fixed, and judges merely decide whether the litigants’ conduct, like a player's swing at bat, is a ball or a strike.
Who would have believed that after 100 years of precedent, the United States Supreme Court would have ruled in Citizens United v. Federal Election Commission (2009) 130 S.Ct. 876 that corporations are the same as individuals for First Amendment purposes. Or to some, assessing the court’s proclivities, the ruling was no surprise.
In any circumstance, I dislike being on the receiving end of a surprise. I dread the thought of ever being the “victim” of a surprise birthday party. I have seen the hapless birthday person walk into his home with a bag of groceries, and the expectation of a quiet evening reading Marcus Aurelius’ "Meditations," fumble for the light switch, then nearly have a heart attack when 75 screaming voices yell, “Surprise!!”
I do not relish helping plan a surprise party, but on occasion I am impressed for duty. I recall helping plan a surprise party for a friend who loved Orson Welles’ masterpiece, "Citizen Kane." He could recite all the lines from the movie by heart. As he unsuspectingly walked into his darkened living room, I induced all the party goers to shout, “Rosebud.” As we revived him, he was too startled to even register what we had yelled.
I have been on the receiving end of surprises now and then during my 35 years on the bench. I am not talking about the inevitable reversals and the occasional affirmances from higher courts. When I was “elevated” (sounds like a religious rite) from the Municipal to the Superior Court, a public defender, and good friend, Linda Schwartz planned a courtroom surprise for me. I took the bench for the afternoon calendar and called a case the clerk had put in front of me. A young woman, dressed in tights, came before the bench and sang and danced to music on her tape recorder. The original lyrics recounted my adventures as “King” of the traffic court and “Dispo” artist in the criminal misdemeanor calendar court. Everyone in the courtroom applauded. I held her in contempt.
Shortly thereafter I was invited to a party given by two public defenders. One of them, let’s call her S., told me the party was a surprise, but not a surprise birthday party. The surprise was for the guests, because this party would be her surprise wedding, a wedding that she asked me to perform. She extracted a promise from me that I not tell anyone about the surprise. I wasn’t sure if this included the groom. I was relieved when during the ceremony he responded, “I do,” to the all-important question I put to him.
This wedding was truly a surprise to all the guests, including the parents of the bride and groom who the couple thoughtfully invited. At the appropriate time, I called the guests into the backyard and quieted them down. Pandemonium broke out when they realized the ceremony I was performing was not a skit, but the real thing. The congratulations and hugging lasted the rest of the night. The couple asked if I enjoyed participating in this bit of deception. I said did, but asked myself, “What about wedding presents?”
I also performed a surprise wedding for a couple I knew who were in “couples group therapy.” I performed the ceremony at the close of one of their sessions. The weekly sessions were conducted on Tuesday evenings by a married couple, both of whom were psychiatrists. The group consisted of about five or six couples who had been attending these sessions for a few years. They met in the therapists’ office in a nondescript building on Wilshire Blvd. in Santa Monica. The couple for whom I was to perform the wedding ceremony asked me to “drop in” at 9:30 p.m. at the close of the session.
I parked in front of the building at 9:30 sharp. The prospective groom, let’s call him D., was waiting for me in front of the building. He was the only person in sight. It was eerie seeing him there, his shirt sleeves folded back above his wrists, his tie loosened below his open collar, a lone figure, bathed in a shaft of light coming from the empty lobby. I had an uneasy feeling as I approached him. It was like walking into an Edward Hopper painting.
He greeted me and we took the elevator up to the 10th floor. “We are having a little celebration,” he said. “It’s Marty’s birthday.”
“It’s not a surprise party is it?” I said, trying to be light hearted.
“No,” said D. “Only our marriage.”
We walked a short distance down the empty corridor and D. opened a door. I walked into a brightly lit room that was furnished like a comfortable den, with couches and easy chairs. The couples were talking and laughing, drinking wine and munching on birthday cake. They looked up from their reverie and suddenly the room turned completely silent. I was apparently the first outsider ever to breach this inner sanctum in which I imagined the most intimate practices, inner feelings, fantasies, and provocative stories were revealed.
D. broke the ice. “This is Art,” he said, and walked to the other side of the room. There was an empty chair nearby. I sat down. They were all staring at me, not saying a word. An attractive blonde woman with a cutting knife in her hand finally said warily, “Art, care for a piece of cake?” “That would be nice,” I replied. She cut me a piece, carefully placed it on a plate and handed it to me. “It’s Marty’s birthday,” she said. “Thanks,” I said. “And Happy Birthday to Marty.” Of course, I didn’t know which one was Marty. The conversation among the couples resumed, but was now more like a murmur. I munched on my cake and even accepted a glass of wine.
A man came over to me. I think it was Marty. He was about to ask me a question, when I noticed D. give me a high sign. I put my cake down and got up from my seat and said, “Excuse me.” I walked to the front of the room where D. and S., his soon-to-be-bride, were now standing. All eyes were on us and everyone stopped eating and drinking. I welcomed everyone there, enjoying that brief moment of rhetorical irony. I then began the wedding ceremony. They caught on, and the place erupted in cheers, tears, and shouts of joy. The ceremony over, I took my leave. They gave me an extra piece of cake to take home.
Both of these surprise weddings occurred many years ago. I am pleased to inform you that my wife Barbara and I are good friends of the surprise wedding couples, and that both couples are still happily married.
But despite the happy outcomes of the surprise weddings I just related, surprise Supreme Court decisions can be unnerving. Reversals from a higher court can cause a lower court judge (that includes me) to say or think, “I knew it.” No matter, it still may be a surprise. Affirmances should not be a surprise, but merely a validation that you on the lower court got it right. But still, the lack of certainty brings an element of surprise to decisions rendered by higher courts.
But a big surprise decision can be disquieting. It causes one to wonder what happens next. Getting back to the Citizens United case for example: If corporations have the same First Amendment rights as people, perhaps next corporations will be able to sue for loss of consortium. Under the rationale of Citizens United, this should come as no surprise. Loss of the capacity to do what some corporations excel in just might be compensable.
In his confirmation hearing, Chief Justice Roberts saw his role as a referee calling “balls and strikes.” But that assumes that laws, like the rules of baseball, are fixed, and judges merely decide whether the litigants’ conduct, like a player's swing at bat, is a ball or a strike.
Who would have believed that after 100 years of precedent, the United States Supreme Court would have ruled in Citizens United v. Federal Election Commission (2009) 130 S.Ct. 876 that corporations are the same as individuals for First Amendment purposes. Or to some, assessing the court’s proclivities, the ruling was no surprise.
In any circumstance, I dislike being on the receiving end of a surprise. I dread the thought of ever being the “victim” of a surprise birthday party. I have seen the hapless birthday person walk into his home with a bag of groceries, and the expectation of a quiet evening reading Marcus Aurelius’ "Meditations," fumble for the light switch, then nearly have a heart attack when 75 screaming voices yell, “Surprise!!”
I do not relish helping plan a surprise party, but on occasion I am impressed for duty. I recall helping plan a surprise party for a friend who loved Orson Welles’ masterpiece, "Citizen Kane." He could recite all the lines from the movie by heart. As he unsuspectingly walked into his darkened living room, I induced all the party goers to shout, “Rosebud.” As we revived him, he was too startled to even register what we had yelled.
I have been on the receiving end of surprises now and then during my 35 years on the bench. I am not talking about the inevitable reversals and the occasional affirmances from higher courts. When I was “elevated” (sounds like a religious rite) from the Municipal to the Superior Court, a public defender, and good friend, Linda Schwartz planned a courtroom surprise for me. I took the bench for the afternoon calendar and called a case the clerk had put in front of me. A young woman, dressed in tights, came before the bench and sang and danced to music on her tape recorder. The original lyrics recounted my adventures as “King” of the traffic court and “Dispo” artist in the criminal misdemeanor calendar court. Everyone in the courtroom applauded. I held her in contempt.
Shortly thereafter I was invited to a party given by two public defenders. One of them, let’s call her S., told me the party was a surprise, but not a surprise birthday party. The surprise was for the guests, because this party would be her surprise wedding, a wedding that she asked me to perform. She extracted a promise from me that I not tell anyone about the surprise. I wasn’t sure if this included the groom. I was relieved when during the ceremony he responded, “I do,” to the all-important question I put to him.
This wedding was truly a surprise to all the guests, including the parents of the bride and groom who the couple thoughtfully invited. At the appropriate time, I called the guests into the backyard and quieted them down. Pandemonium broke out when they realized the ceremony I was performing was not a skit, but the real thing. The congratulations and hugging lasted the rest of the night. The couple asked if I enjoyed participating in this bit of deception. I said did, but asked myself, “What about wedding presents?”
I also performed a surprise wedding for a couple I knew who were in “couples group therapy.” I performed the ceremony at the close of one of their sessions. The weekly sessions were conducted on Tuesday evenings by a married couple, both of whom were psychiatrists. The group consisted of about five or six couples who had been attending these sessions for a few years. They met in the therapists’ office in a nondescript building on Wilshire Blvd. in Santa Monica. The couple for whom I was to perform the wedding ceremony asked me to “drop in” at 9:30 p.m. at the close of the session.
I parked in front of the building at 9:30 sharp. The prospective groom, let’s call him D., was waiting for me in front of the building. He was the only person in sight. It was eerie seeing him there, his shirt sleeves folded back above his wrists, his tie loosened below his open collar, a lone figure, bathed in a shaft of light coming from the empty lobby. I had an uneasy feeling as I approached him. It was like walking into an Edward Hopper painting.
He greeted me and we took the elevator up to the 10th floor. “We are having a little celebration,” he said. “It’s Marty’s birthday.”
“It’s not a surprise party is it?” I said, trying to be light hearted.
“No,” said D. “Only our marriage.”
We walked a short distance down the empty corridor and D. opened a door. I walked into a brightly lit room that was furnished like a comfortable den, with couches and easy chairs. The couples were talking and laughing, drinking wine and munching on birthday cake. They looked up from their reverie and suddenly the room turned completely silent. I was apparently the first outsider ever to breach this inner sanctum in which I imagined the most intimate practices, inner feelings, fantasies, and provocative stories were revealed.
D. broke the ice. “This is Art,” he said, and walked to the other side of the room. There was an empty chair nearby. I sat down. They were all staring at me, not saying a word. An attractive blonde woman with a cutting knife in her hand finally said warily, “Art, care for a piece of cake?” “That would be nice,” I replied. She cut me a piece, carefully placed it on a plate and handed it to me. “It’s Marty’s birthday,” she said. “Thanks,” I said. “And Happy Birthday to Marty.” Of course, I didn’t know which one was Marty. The conversation among the couples resumed, but was now more like a murmur. I munched on my cake and even accepted a glass of wine.
A man came over to me. I think it was Marty. He was about to ask me a question, when I noticed D. give me a high sign. I put my cake down and got up from my seat and said, “Excuse me.” I walked to the front of the room where D. and S., his soon-to-be-bride, were now standing. All eyes were on us and everyone stopped eating and drinking. I welcomed everyone there, enjoying that brief moment of rhetorical irony. I then began the wedding ceremony. They caught on, and the place erupted in cheers, tears, and shouts of joy. The ceremony over, I took my leave. They gave me an extra piece of cake to take home.
Both of these surprise weddings occurred many years ago. I am pleased to inform you that my wife Barbara and I are good friends of the surprise wedding couples, and that both couples are still happily married.
But despite the happy outcomes of the surprise weddings I just related, surprise Supreme Court decisions can be unnerving. Reversals from a higher court can cause a lower court judge (that includes me) to say or think, “I knew it.” No matter, it still may be a surprise. Affirmances should not be a surprise, but merely a validation that you on the lower court got it right. But still, the lack of certainty brings an element of surprise to decisions rendered by higher courts.
But a big surprise decision can be disquieting. It causes one to wonder what happens next. Getting back to the Citizens United case for example: If corporations have the same First Amendment rights as people, perhaps next corporations will be able to sue for loss of consortium. Under the rationale of Citizens United, this should come as no surprise. Loss of the capacity to do what some corporations excel in just might be compensable.
Monday, March 01, 2010
Cutting It Short
I was working out with my trainer, Shane, and he told me about a job opportunity for which I was well suited. Please no comments about having a trainer. When I was a kid, we didn’t have trainers, life coaches, Pilates instructors, wardrobe consultants, nutritionists, party planners, and the cadre of “professionals” we require to manage our lives.
But that was then. Now, I have concocted a rationale for working with a trainer. It “boosts” my energy level and sharpens my mind so that I can track attorneys’ complex arguments. This in turn enables me and my staff to craft the important decisions that are a part of the weave and nap that comprise the law’s fabric of our great state, the hallmark of a civilized society. You don’t buy it? Then how about this? Working with a trainer builds core strength, keeps my immune system robust, and my bones dense and strong. Buy that? You acknowledge that reason is more plausible but you are still unconvinced?
O.K. I will drop the pretense. The true reason stems from my affinity for dwarfs. This is because I am short, chronically short. I have been this way all my life, and now, with advancing age, I am getting shorter. Who knows, in another few years, I could disappear. I was hoping that maybe Shane could stretch me out so that I don’t become microscopic. But the job opportunity he offered me gives me pause. A friend of his made a movie and, to promote it, advertised for a dwarf to dress in a costume and shoot T-shirts out of a gun. He tells me it pays well. I told him I would think about it. It might detract from the dignity of the judiciary.
When I was a child, about four years old, we lived on the top floor of a hotel on the beach in Venice, California. But, even then, the characters I remember in my life could have come from Venice, Italy, straight out of a Fellini movie. This was during World War II. They say that people born during that time are on average much shorter than people born today…after they grow up.
The hotel is still there, and on Thursday mornings, when I bike down to Venice with a group of friends, I point it out. They are tired of hearing about it, but not tired of hearing about what life was like then for a four year old. You could not go on the beach at night, and you had to draw the window shades that faced the ocean. If even a sliver of light shone through the window, there would be a knock on your door and a volunteer air raid warden would tell you to pull your shade all the way down. Japanese submarines had fired upon an oil refinery in Goleta.
Our hotel was on what we called “the front.” It was like the boardwalk on Coney Island, only there were no boards. It was made of cement and was a place for people to walk and for “trams” to carry passengers from one place to another. It extended for several miles from Santa Monica to Venice. There were piers in Santa Monica. One was a fishing pier that extended out into a boat harbor that is no longer there. Further south was an amusement pier in Ocean Park, the forerunner to "POP" built in the 1960’s. Next to that pier was a short pier called Lick Pier on which was the Aragon Ballroom where the Lawrence Welk band played relentlessly. A few miles south of that pier was Venice Pier at the base of which was what we then called a motion picture theater. It was owned by a husband and wife, both of whom were dwarfs. I regret to say that the pier, the motion picture theater, and the dwarfs are gone.
Husband and wife would walk along the “front” in the morning on their way to their theater which they opened around noon. Every morning they would stop in front of our hotel to rest awhile on one of the benches that lined the “front.” I would watch them climb up on the bench where they would sit side by side holding hands. This image is seared into my brain and it gives me comfort that I can call it to mind at will.
So I have this affinity with what is short. I cheer for the Lilliputians. One of my favorite books is “The Dwarf” by Nobel Prize winner, Par Lagerkvist. True, that dwarf was evil incarnate. But I view him as a metaphor for evil more than a real live person. One of my favorite actors was Billy Barty. He founded an organization championing the cause of what he described as the “Little People,” with the emphasis on “people.” I did have one unfortunate experience with a dwarf when I was about 10 years old. He was dressed in a Donald Duck costume and I pulled on his bill. He took off his head and bawled me out. Scared the hell out of me. I’m over it now.
Neither my wife, who is even shorter than I, nor I are prejudiced against tall people. Our best friends are tall. They have to look down at us, but they assure us they look up to us figuratively. I try not to overcompensate in my profession. I treat tall lawyers well. My wife and I are big basketball fans. The important thing is to think tall.
Short, by itself, is neither good nor bad, but in some contexts it can be horrendous. California’s current budget shortfall, for example, has shortened some tempers in the judiciary. But civility has not waned in two judicial leaders, both of whom are tall in stature, intellect and integrity. One can look up to both of them literally and figuratively.
We have all heard and read about Los Angeles Superior Court Presiding Judge Tim McCoy’s concerns about the judiciary’s budget deficits and his predictions about courtroom closures and substantial employee layoffs. He takes issue with Chief George’s allocation of a limited judicial budget. In particular, McCoy would like to see funds currently allocated for courtroom construction temporarily diverted to the Los Angeles Superior Court and funds for the computerized California Case Management System put on hold.
The Chief and his staff point out that the deplorable condition of many courthouses throughout the state renders them unusable. Construction and repairs give us safe courthouses and provide much-needed jobs. And the costs for the case management system are on a “pay-as-you-go” basis. Implementation of the program statewide has been deferred beyond 2013.
Many parties affected by budget cuts have legitimate concerns. I am sympathetic to Judge McCoy’s worries, but the alarms he raises publicly may be, at this point, more problematic than productive. In an editorial on February 10, 2010, the Los Angeles Times acknowledges that McCoy and the Chief are the “most polite of disputants,” but cautions that “ angry judges and turf-defending court officials,” backing either George or McCoy, threaten “to make all of them look more adolescent than judicial.” The editorial points out that "the size of the budget problem is not yet clear, and won’t be before the state’s May budget revision.”
We in the judiciary may have differing views on a variety of issues, but we have not been fractious like many of our legislative colleagues of recent times. As the Times editorial points out, the courts do not have a strong public constituency, and “[a] court system at war with itself is ill-equipped to make its best case to the Legislature for sufficient funding and in the court of public opinion for respect and continued independence.”
I would like to see Judge McCoy, who represents the largest trial court in the country, sit down with the Chief, and representatives of the Administrative Office of the Courts, so that each side could understand and fairly consider facts that support the other’s point of view. That is what judges are trained to do.
Attorney Tim Tosta might have a good approach for such a meeting. He survived what had been diagnosed as incurable cancer. This life-threatening experience changed his life and his approach to living, solving problems, and practicing law. In a column that appeared in the Daily Journal on January 11, 2010, he described his efforts trying to help a hospice patient. He completely misinterpreted what the struggling patient was trying to tell him. He finally realized his premise was faulty and then was able to provide the comfort the dying patient was asking for.
The approach he used with the patient could well be used by all of us dealing with any problem, including the budget crises. It is easy to make mistakes about what we observe. Tosta suggests that we not “forego the opportunity to test” what we think is the “truth.” That gives us the opportunity "to create solutions more consistent with [one’s] observations and experience.” Tosta warns that “regrettably we are often so filled with reactive behavior that we fail to make important inquiries.”
The budget shortfall requires that we adopt a view to what is best for the state overall. The Chief has fought tirelessly on behalf of the judiciary throughout the state without showing favoritism for any particular court. It is not an easy balancing act, but cuts have to be made. The budget shortfall is critical, but it is also fluid. Perhaps a solution could be forged out of such a meeting. The sky above may be cloudy, threatening a menacing storm, but that does not mean it is falling.
However this turns out, one thing is certain: budget shortfalls require sacrifice. I, along with most judges in the state, have taken a voluntary cut in pay. That makes me short both in cash and height. I thought again about that job shooting T-shirts out of a gun to supplement my paycheck. How could it bring ridicule to the judiciary when I will be hidden from view? But I used Tosta’s approach to the problem and decided against it. Some snotty little kid might mess with my costume, and I just might take of my head and give him a piece of my mind.
But that was then. Now, I have concocted a rationale for working with a trainer. It “boosts” my energy level and sharpens my mind so that I can track attorneys’ complex arguments. This in turn enables me and my staff to craft the important decisions that are a part of the weave and nap that comprise the law’s fabric of our great state, the hallmark of a civilized society. You don’t buy it? Then how about this? Working with a trainer builds core strength, keeps my immune system robust, and my bones dense and strong. Buy that? You acknowledge that reason is more plausible but you are still unconvinced?
O.K. I will drop the pretense. The true reason stems from my affinity for dwarfs. This is because I am short, chronically short. I have been this way all my life, and now, with advancing age, I am getting shorter. Who knows, in another few years, I could disappear. I was hoping that maybe Shane could stretch me out so that I don’t become microscopic. But the job opportunity he offered me gives me pause. A friend of his made a movie and, to promote it, advertised for a dwarf to dress in a costume and shoot T-shirts out of a gun. He tells me it pays well. I told him I would think about it. It might detract from the dignity of the judiciary.
When I was a child, about four years old, we lived on the top floor of a hotel on the beach in Venice, California. But, even then, the characters I remember in my life could have come from Venice, Italy, straight out of a Fellini movie. This was during World War II. They say that people born during that time are on average much shorter than people born today…after they grow up.
The hotel is still there, and on Thursday mornings, when I bike down to Venice with a group of friends, I point it out. They are tired of hearing about it, but not tired of hearing about what life was like then for a four year old. You could not go on the beach at night, and you had to draw the window shades that faced the ocean. If even a sliver of light shone through the window, there would be a knock on your door and a volunteer air raid warden would tell you to pull your shade all the way down. Japanese submarines had fired upon an oil refinery in Goleta.
Our hotel was on what we called “the front.” It was like the boardwalk on Coney Island, only there were no boards. It was made of cement and was a place for people to walk and for “trams” to carry passengers from one place to another. It extended for several miles from Santa Monica to Venice. There were piers in Santa Monica. One was a fishing pier that extended out into a boat harbor that is no longer there. Further south was an amusement pier in Ocean Park, the forerunner to "POP" built in the 1960’s. Next to that pier was a short pier called Lick Pier on which was the Aragon Ballroom where the Lawrence Welk band played relentlessly. A few miles south of that pier was Venice Pier at the base of which was what we then called a motion picture theater. It was owned by a husband and wife, both of whom were dwarfs. I regret to say that the pier, the motion picture theater, and the dwarfs are gone.
Husband and wife would walk along the “front” in the morning on their way to their theater which they opened around noon. Every morning they would stop in front of our hotel to rest awhile on one of the benches that lined the “front.” I would watch them climb up on the bench where they would sit side by side holding hands. This image is seared into my brain and it gives me comfort that I can call it to mind at will.
So I have this affinity with what is short. I cheer for the Lilliputians. One of my favorite books is “The Dwarf” by Nobel Prize winner, Par Lagerkvist. True, that dwarf was evil incarnate. But I view him as a metaphor for evil more than a real live person. One of my favorite actors was Billy Barty. He founded an organization championing the cause of what he described as the “Little People,” with the emphasis on “people.” I did have one unfortunate experience with a dwarf when I was about 10 years old. He was dressed in a Donald Duck costume and I pulled on his bill. He took off his head and bawled me out. Scared the hell out of me. I’m over it now.
Neither my wife, who is even shorter than I, nor I are prejudiced against tall people. Our best friends are tall. They have to look down at us, but they assure us they look up to us figuratively. I try not to overcompensate in my profession. I treat tall lawyers well. My wife and I are big basketball fans. The important thing is to think tall.
Short, by itself, is neither good nor bad, but in some contexts it can be horrendous. California’s current budget shortfall, for example, has shortened some tempers in the judiciary. But civility has not waned in two judicial leaders, both of whom are tall in stature, intellect and integrity. One can look up to both of them literally and figuratively.
We have all heard and read about Los Angeles Superior Court Presiding Judge Tim McCoy’s concerns about the judiciary’s budget deficits and his predictions about courtroom closures and substantial employee layoffs. He takes issue with Chief George’s allocation of a limited judicial budget. In particular, McCoy would like to see funds currently allocated for courtroom construction temporarily diverted to the Los Angeles Superior Court and funds for the computerized California Case Management System put on hold.
The Chief and his staff point out that the deplorable condition of many courthouses throughout the state renders them unusable. Construction and repairs give us safe courthouses and provide much-needed jobs. And the costs for the case management system are on a “pay-as-you-go” basis. Implementation of the program statewide has been deferred beyond 2013.
Many parties affected by budget cuts have legitimate concerns. I am sympathetic to Judge McCoy’s worries, but the alarms he raises publicly may be, at this point, more problematic than productive. In an editorial on February 10, 2010, the Los Angeles Times acknowledges that McCoy and the Chief are the “most polite of disputants,” but cautions that “ angry judges and turf-defending court officials,” backing either George or McCoy, threaten “to make all of them look more adolescent than judicial.” The editorial points out that "the size of the budget problem is not yet clear, and won’t be before the state’s May budget revision.”
We in the judiciary may have differing views on a variety of issues, but we have not been fractious like many of our legislative colleagues of recent times. As the Times editorial points out, the courts do not have a strong public constituency, and “[a] court system at war with itself is ill-equipped to make its best case to the Legislature for sufficient funding and in the court of public opinion for respect and continued independence.”
I would like to see Judge McCoy, who represents the largest trial court in the country, sit down with the Chief, and representatives of the Administrative Office of the Courts, so that each side could understand and fairly consider facts that support the other’s point of view. That is what judges are trained to do.
Attorney Tim Tosta might have a good approach for such a meeting. He survived what had been diagnosed as incurable cancer. This life-threatening experience changed his life and his approach to living, solving problems, and practicing law. In a column that appeared in the Daily Journal on January 11, 2010, he described his efforts trying to help a hospice patient. He completely misinterpreted what the struggling patient was trying to tell him. He finally realized his premise was faulty and then was able to provide the comfort the dying patient was asking for.
The approach he used with the patient could well be used by all of us dealing with any problem, including the budget crises. It is easy to make mistakes about what we observe. Tosta suggests that we not “forego the opportunity to test” what we think is the “truth.” That gives us the opportunity "to create solutions more consistent with [one’s] observations and experience.” Tosta warns that “regrettably we are often so filled with reactive behavior that we fail to make important inquiries.”
The budget shortfall requires that we adopt a view to what is best for the state overall. The Chief has fought tirelessly on behalf of the judiciary throughout the state without showing favoritism for any particular court. It is not an easy balancing act, but cuts have to be made. The budget shortfall is critical, but it is also fluid. Perhaps a solution could be forged out of such a meeting. The sky above may be cloudy, threatening a menacing storm, but that does not mean it is falling.
However this turns out, one thing is certain: budget shortfalls require sacrifice. I, along with most judges in the state, have taken a voluntary cut in pay. That makes me short both in cash and height. I thought again about that job shooting T-shirts out of a gun to supplement my paycheck. How could it bring ridicule to the judiciary when I will be hidden from view? But I used Tosta’s approach to the problem and decided against it. Some snotty little kid might mess with my costume, and I just might take of my head and give him a piece of my mind.
Wednesday, February 03, 2010
My Courtroom Is Not Dark
476-2151. That is my old phone number. The phone company disconnected it when I moved to a new address 39 years ago just as we began establishing area codes. I do not always remember what I did a few days ago. Still, it is not extraordinary that I remember my phone number from decades ago. The phone, then, as today, was a vital link to others. And, as today, we “gave” our numbers to special people, but there were no cell phones to store numbers. Those special phone numbers from the past stay imbedded in memory because they were “dialed” so often and because they kept us in touch with people who were important in our lives. I still remember some of my friends’ phone numbers I “dialed” 50 years ago.
But a phone number was merely the code that made the connection with others possible. Many of the conversations—the arguments, the expressions of love, anger, compassion and sympathy, the exchange of ideas, profound and commonplace—linger in our memories because they are significant parts of the unique story of our lives. A transcript of some may be prosaic in isolation and seemingly beyond recall. But a momentous event in the present can bring them to the surface where they can be seen with striking clarity for their special significance.
One such phone call from several years back recently was called to my mind. It was from my friend, Federal District Court Judge Florence Cooper. She said, “Art, thanks for introducing me. We had a wonderful conversation.” This unremarkable short call was not about a conversation between Judge Cooper and me, but I doubt I will ever forget it.
A little history will explain. Approximately 20 years ago, I, along with others, formed the West Los Angeles Inns of Court. I recruited several lawyers and judges, including then Superior Court Judge Ronald Schoenberg. He joined with his son, Randy, a recently admitted lawyer. Years later Randy assumed the role of David when he challenged Goliath, the Austrian government, in a celebrated lawsuit over ownership of a group of paintings by Gustav Klimt. The Nazis had stolen the pieces from an Austrian Jewish family. After the war, the paintings came into the possession of the Austrian government.
One painting, in particular, the portrait entitled Adele Bloch-Bauer I, was described by Christopher Knight of the Los Angeles Times as the "singular 1907 tour de force, … among the greatest early Modern paintings now in the U.S…. [I]t ranks as a destination work—the kind one travels just to see—comparable to Pablo Picasso's Les Demoiselles d'Avignon at New York's Museum of Modern Art ...."
Randy represented Maria Altmann, the niece of Adele Bloch-Bauer. Ms. Altmann fought to have the Klimt paintings restored to her, the last surviving family member. Her attempts to obtain redress in Austrian courts were not successful. But Randy took another tack. He filed suit for Ms. Altmann, when she was in her late 80's, under the Foreign Sovereign Immunities Act in the United States District Court, Judge Florence Marie Cooper Presiding.
Did Ms. Altmann have standing to sue the Austrian government? Judge Cooper said she did. So did the United States Supreme Court.
Owing to Ms. Altmann’s advancing age and the passage of years over which the appeals would stretch, whatever the outcome, Randy and Ms. Altmann opted for binding arbitration before three arbitrators in Germany. The decision was unanimous in Ms. Altmann's favor. The five Klimt paintings, including the stunning portrait of Adele Bloch-Bauer I, were returned to the rightful owner.
I attended a special showing of the paintings at the Los Angeles County Museum of Art where Randy introduced me to Ms. Altmann. As I was congratulating Ms. Altmann, I noticed out of the corner of my eye Judge Cooper entering the gallery. I grabbed hold of Judge Cooper’s arm and brought her over to Ms. Altmann. “And here’s the judge who made it all possible,” I said. They hugged and sat down at a table and became engaged in animated conversation like two friends who have known each other for years. I still see so clearly the two of them, talking and laughing, two people of great courage and character, who in quite different ways demonstrated how the courts can be a potent force for justice.
It is so difficult for many of us accept the terrible news that Judge Cooper died on January 15, 2010. She was a friend whose warmth, kindness, humor and brilliance touched everyone she knew. We had dinner many times throughout the years with a small group of friends, all of whom shared a disdain for formal clubs. We formed our own anti‑club dinner club, dubbed “CALJIC I" by its president, criminal defense attorney Bob Schwartz. Bob takes pride in his inability ever to establish order at our meetings. Our bylaws prevent me from disclosing or even summarizing our conversations. No matter, the bylaws were not written and the conversations were hard to follow with all the interruptions and laughter.
Florence Cooper proved that an academic pedigree is not an essential ingredient to be a great judge. She graduated top of her class at the Beverly Rubens Law School, now called the Whittier Law School. No doubt, Beverly Rubens was one great law professor. And Florence and one of her best friends and classmates, Miriam Vogel, who graduated magna cum laude, were stunningly brilliant students. Miriam, now a leading appellate practitioner, became one of our state’s most respected justices on the California Court of Appeal. To hear Miriam recount their days in law school, studying for the bar, pursuing their careers and raising their families is both hilarious and touching.
Through example, Judge Cooper made us better at what we do. She showed judges what it is to be the best possible jurist. One could not help take notice. Ninth Circuit Court of Appeals Judge Arthur Alarcon, for whom she clerked when she graduated from law school, described her as one of the finest jurists in our country. He was so impressed with her work in his chambers that he acknowledged that she had become part of his brain. And that is one impressive brain. Exceptional people like Judge Cooper stay with you forever.
A typical example of how other judges viewed Judge Cooper is found in these words written by California Court of Appeal Justice Elizabeth Baron (Ret.). Upon learning of Judge Cooper’s death, she wrote so eloquently: "I have known Florence Marie Cooper for 30 years and, to me, she was the quintessential judge; the purest and most perfect example of what it means to be a judge. From holocaust victims to whales to government malfeasance, she was committed to overseeing a process that would render an outcome based on a fair and impartial adjudication of each case. Her crushing caseload never prevented her from reading every document presented to her or analyzing each issue in depth. She provided the foundational and emotional support for her family. She was loyal and true to her friends. She sang like an angel, played the piano and knit sweaters for us. Her death leaves a gigantic hole in the fabric of our legal world and in my life."
Judge Florence Marie Cooper remains with us through the legacy she leaves. With apologies to Mary Frye, who after the death of a dear friend is reputed to have written a moving poem in 1932, entitled "Do Not Stand at My Grave and Weep," I close with a poem inspired by Ms. Frye and Judge Cooper.
My Courtroom is Not Dark
My courtroom is not dark, the door opens wide,
I have not gone, I still preside.
I am the judge, the judge who is fair,
I am the judge, the judge who cares.
I am the judge before whom you rise,
Yet, the judge who is humble, who strives to be wise.
I am the judge intent and kind,
The judge not afraid to change her mind.
I am the judge who loves the law,
Who knows the record, sees an argument’s flaw.
I am the judge who does not glower,
The judge who uses, not abuses her power.
I am the judge all can trust,
The judge who rules as she can, and rules as she must
My courtroom is not dark, the door opens wide,
I have not gone, I still preside.
But a phone number was merely the code that made the connection with others possible. Many of the conversations—the arguments, the expressions of love, anger, compassion and sympathy, the exchange of ideas, profound and commonplace—linger in our memories because they are significant parts of the unique story of our lives. A transcript of some may be prosaic in isolation and seemingly beyond recall. But a momentous event in the present can bring them to the surface where they can be seen with striking clarity for their special significance.
One such phone call from several years back recently was called to my mind. It was from my friend, Federal District Court Judge Florence Cooper. She said, “Art, thanks for introducing me. We had a wonderful conversation.” This unremarkable short call was not about a conversation between Judge Cooper and me, but I doubt I will ever forget it.
A little history will explain. Approximately 20 years ago, I, along with others, formed the West Los Angeles Inns of Court. I recruited several lawyers and judges, including then Superior Court Judge Ronald Schoenberg. He joined with his son, Randy, a recently admitted lawyer. Years later Randy assumed the role of David when he challenged Goliath, the Austrian government, in a celebrated lawsuit over ownership of a group of paintings by Gustav Klimt. The Nazis had stolen the pieces from an Austrian Jewish family. After the war, the paintings came into the possession of the Austrian government.
One painting, in particular, the portrait entitled Adele Bloch-Bauer I, was described by Christopher Knight of the Los Angeles Times as the "singular 1907 tour de force, … among the greatest early Modern paintings now in the U.S…. [I]t ranks as a destination work—the kind one travels just to see—comparable to Pablo Picasso's Les Demoiselles d'Avignon at New York's Museum of Modern Art ...."
Randy represented Maria Altmann, the niece of Adele Bloch-Bauer. Ms. Altmann fought to have the Klimt paintings restored to her, the last surviving family member. Her attempts to obtain redress in Austrian courts were not successful. But Randy took another tack. He filed suit for Ms. Altmann, when she was in her late 80's, under the Foreign Sovereign Immunities Act in the United States District Court, Judge Florence Marie Cooper Presiding.
Did Ms. Altmann have standing to sue the Austrian government? Judge Cooper said she did. So did the United States Supreme Court.
Owing to Ms. Altmann’s advancing age and the passage of years over which the appeals would stretch, whatever the outcome, Randy and Ms. Altmann opted for binding arbitration before three arbitrators in Germany. The decision was unanimous in Ms. Altmann's favor. The five Klimt paintings, including the stunning portrait of Adele Bloch-Bauer I, were returned to the rightful owner.
I attended a special showing of the paintings at the Los Angeles County Museum of Art where Randy introduced me to Ms. Altmann. As I was congratulating Ms. Altmann, I noticed out of the corner of my eye Judge Cooper entering the gallery. I grabbed hold of Judge Cooper’s arm and brought her over to Ms. Altmann. “And here’s the judge who made it all possible,” I said. They hugged and sat down at a table and became engaged in animated conversation like two friends who have known each other for years. I still see so clearly the two of them, talking and laughing, two people of great courage and character, who in quite different ways demonstrated how the courts can be a potent force for justice.
It is so difficult for many of us accept the terrible news that Judge Cooper died on January 15, 2010. She was a friend whose warmth, kindness, humor and brilliance touched everyone she knew. We had dinner many times throughout the years with a small group of friends, all of whom shared a disdain for formal clubs. We formed our own anti‑club dinner club, dubbed “CALJIC I" by its president, criminal defense attorney Bob Schwartz. Bob takes pride in his inability ever to establish order at our meetings. Our bylaws prevent me from disclosing or even summarizing our conversations. No matter, the bylaws were not written and the conversations were hard to follow with all the interruptions and laughter.
Florence Cooper proved that an academic pedigree is not an essential ingredient to be a great judge. She graduated top of her class at the Beverly Rubens Law School, now called the Whittier Law School. No doubt, Beverly Rubens was one great law professor. And Florence and one of her best friends and classmates, Miriam Vogel, who graduated magna cum laude, were stunningly brilliant students. Miriam, now a leading appellate practitioner, became one of our state’s most respected justices on the California Court of Appeal. To hear Miriam recount their days in law school, studying for the bar, pursuing their careers and raising their families is both hilarious and touching.
Through example, Judge Cooper made us better at what we do. She showed judges what it is to be the best possible jurist. One could not help take notice. Ninth Circuit Court of Appeals Judge Arthur Alarcon, for whom she clerked when she graduated from law school, described her as one of the finest jurists in our country. He was so impressed with her work in his chambers that he acknowledged that she had become part of his brain. And that is one impressive brain. Exceptional people like Judge Cooper stay with you forever.
A typical example of how other judges viewed Judge Cooper is found in these words written by California Court of Appeal Justice Elizabeth Baron (Ret.). Upon learning of Judge Cooper’s death, she wrote so eloquently: "I have known Florence Marie Cooper for 30 years and, to me, she was the quintessential judge; the purest and most perfect example of what it means to be a judge. From holocaust victims to whales to government malfeasance, she was committed to overseeing a process that would render an outcome based on a fair and impartial adjudication of each case. Her crushing caseload never prevented her from reading every document presented to her or analyzing each issue in depth. She provided the foundational and emotional support for her family. She was loyal and true to her friends. She sang like an angel, played the piano and knit sweaters for us. Her death leaves a gigantic hole in the fabric of our legal world and in my life."
Judge Florence Marie Cooper remains with us through the legacy she leaves. With apologies to Mary Frye, who after the death of a dear friend is reputed to have written a moving poem in 1932, entitled "Do Not Stand at My Grave and Weep," I close with a poem inspired by Ms. Frye and Judge Cooper.
My Courtroom is Not Dark
My courtroom is not dark, the door opens wide,
I have not gone, I still preside.
I am the judge, the judge who is fair,
I am the judge, the judge who cares.
I am the judge before whom you rise,
Yet, the judge who is humble, who strives to be wise.
I am the judge intent and kind,
The judge not afraid to change her mind.
I am the judge who loves the law,
Who knows the record, sees an argument’s flaw.
I am the judge who does not glower,
The judge who uses, not abuses her power.
I am the judge all can trust,
The judge who rules as she can, and rules as she must
My courtroom is not dark, the door opens wide,
I have not gone, I still preside.
Monday, January 04, 2010
A New Year's Resolution
When I was a kid, rarely did we see “homeless” people wandering the streets, and never did we see someone putting cardboard boxes together to make a shelter to sleep in the park. The occasional vagrant begging for a handout was called “a bum” or “a drunk.” I recall when I was a college student, a man, unshaven and wearing dirty clothes, approached a group of us walking down the street and asked for money. One of my friends told him to get a job. The man swore at us as we walked away. That scene, fifty years ago, still haunts me. I wasn’t sure how to respond. Jobs were much more available then, but this particular needy person may not have been capable of getting a job, and, perhaps, had we given him money, he might have spent it on booze. But these rationalizations give me small comfort.
Now, fifty years later, on occasion I either give a few dollars to a homeless person or order him or her a meal. Notice, I said “on occasion.” I am not sure why sometimes I do and sometimes I don’t. About twenty-five years ago, when I was newly appointed to the Court of Appeal, a group of my colleagues and I were walking to lunch on Wilshire Blvd. A pathetic looking homeless person standing by the curb asked us in almost a whisper if we could spare some change. I doubt my colleagues heard him, but I did. I walked over and gave him some change.
One of the justices gently chided me for giving him money that he was sure would be spent on alcohol. He suggested good naturedly that I was a typical liberal. I responded that even alcoholics have to eat. A psychiatrist friend of mine scolded me for giving money to a homeless person. “He is an alcoholic. He will just spend the money on booze.”
Maybe they are right. Perhaps it is better to donate time and money to a homeless shelter than to offer random individuals sporadic palliatives. Yet, it is hard to ignore the lady with the dog at the freeway entrance at 11:00 p.m. or the elderly couple huddled in the front alcove of a closed store on a cold evening.
This dilemma spawns so many questions. Was I a liberal when I gave money, but not a liberal when I didn’t? Is there such a thing as a sometimes liberal? The term “liberal” was effectively used in George W. Bush’s campaign for President as a contemptible trait found in people who were not worthy to govern.
But what is a liberal? Someone who supports change for the good of everyone in society? Someone who supports justice for everyone? Do not conservatives aspire to the same goals? I have heard conservatives complain that liberals theorize about concepts, but can be cranks who tyrannize their spouses, offspring and friends. And I have heard liberals complain that some of their conservative friends are kind and generous on a personal level, but have no compassion or concern about specific groups of people, like, for instance, the homeless or the uninsured.
Whatever those terms connote, it looks like neither conservatives nor liberals have exclusive rights to the moral high ground. David Brooks, who some consider a conservative columnist, wrote a month or two ago in the New York Times about notions of morality. Brooks notes that Princeton Professor Kwame Anthony Appiah, in his book, Experiments in Ethics, posits that decades of experiments have led psychologists to question traditional philosophical notions of morality. We act in moral ways sometimes, but not always. We can be generous and courageous in some situations, and downright despicable in others. And this goes for liberals and conservatives.
Appiah acknowledges that there may be a seeming conflict between the philosophical conception of a consistent moral character and the results of scientific experimentation that show otherwise. But Appiah contends that moral philosophy and scientific empiricism are compatible and can have a “conversation.” The recent debate over health care and other public issues leads me to believe a “conversation” is not taking place between liberals and conservatives.
And this brings me to two unabashed liberals, both friends of mine who passed away within one day of each other. I bet that everyone who knew these two remarkable persons would agree that they both embodied a consistent moral persona that I am certain scientific experimentation would have verified.
I speak of activist Alice McGrath and civil rights lawyer Bob Berke. I was fortunate to have spent time with both of them, just days before their passing.
Alice became famous for her fortitude and commitment to justice as Director of the Sleepy Lagoon Defense Committee. The play, Zoot Suit, by Luis Valdez, tells the dramatic story of this famous trial in which twelve Mexican-American men were tried for murder in 1940. The convictions were reversed in People v. Zammora, 66 Cal.App.2d 166 (1944). The trial was infected with racism and hostility towards the defendants. The appellate court found the evidence insufficient to show defendants conspired to commit murder (id. at pp. 201-202) and chastised the trial judge for disparaging remarks he made about defense counsel in the jury's presence (id. at p. 215).
Alice, diminutive, stunningly beautiful, possessing a will of iron, but always with a twinkle in her eye, fought for social justice all her life. In her 80's, she developed a legal aid program for poor people in Ventura and led numerous study groups to Nicaragua and Cuba. In 1991, Alice accompanied the justices of my division of the Court of Appeal and others from various disciplines on such a trip to Cuba.
We visited the courts and law schools. Alice promoted and encouraged frank discussions with judges and government officials about our differences. Alice and I had many lunches together during which we engaged in animated discussions about literature, politics and religion. And then I lost this great friend. She died November 27th at the age of 92.
Bob Berke was one of the great civil rights lawyers of our day. An indefatigable worker, he refused to give up. I first met him when he was a public defender in my trial court in the 1970's. Like Alice, his commitment to justice was built into his DNA. Bob is credited with helping establish case law allowing criminally charged defendants discovery procedures into police misconduct. He was victorious in public interest lawsuits and secured reversals for defendants whose convictions were based on suspect jailhouse informant testimony. He was handsome, vital, warm and engaging. Again, like Alice, he was someone you could not help but like. He and I had lively discussions about the law, the courts and politics. And a few weeks after our last discussion, he died quite suddenly on November 28th from a form of encephalitis at the untimely age of 61.
The deaths of these two vital individuals take me back to David Brooks' insightful observations. At the end of his column, he remarks that Spike Jonze's film, Where the Wild Things Are, illustrates how the difference between the philosophical and psychological may find resolution. Max, the protagonist, quells the wild impulses within him, but not through the force of reason and self-analysis. These tools are often no match for impulses and instincts that come from evolution, culture and upbringing. Instead, weakness, fear and selfishness are subdued when Max is focused on building a fort or being involved with someone else. Brooks theorizes that "it is possible to achieve momentary harmony through creative work."
And that explains how Alice McGrath and Bob Berke lived their lives. Their moral compass never lost its course because they directed their dissatisfaction with injustice through action, not ranting, not verbal attacks, but doing. They took time to consider other points of view and responded to their adversaries with civility--a good model for all of us, for liberals and conservatives alike. I would like to see everyone adopt this approach as a New Year's resolution. By "everyone," I include politicians and judges everywhere, even in California. And when you ponder what to do about a homeless person in distress, you will make the right decision.
Now, fifty years later, on occasion I either give a few dollars to a homeless person or order him or her a meal. Notice, I said “on occasion.” I am not sure why sometimes I do and sometimes I don’t. About twenty-five years ago, when I was newly appointed to the Court of Appeal, a group of my colleagues and I were walking to lunch on Wilshire Blvd. A pathetic looking homeless person standing by the curb asked us in almost a whisper if we could spare some change. I doubt my colleagues heard him, but I did. I walked over and gave him some change.
One of the justices gently chided me for giving him money that he was sure would be spent on alcohol. He suggested good naturedly that I was a typical liberal. I responded that even alcoholics have to eat. A psychiatrist friend of mine scolded me for giving money to a homeless person. “He is an alcoholic. He will just spend the money on booze.”
Maybe they are right. Perhaps it is better to donate time and money to a homeless shelter than to offer random individuals sporadic palliatives. Yet, it is hard to ignore the lady with the dog at the freeway entrance at 11:00 p.m. or the elderly couple huddled in the front alcove of a closed store on a cold evening.
This dilemma spawns so many questions. Was I a liberal when I gave money, but not a liberal when I didn’t? Is there such a thing as a sometimes liberal? The term “liberal” was effectively used in George W. Bush’s campaign for President as a contemptible trait found in people who were not worthy to govern.
But what is a liberal? Someone who supports change for the good of everyone in society? Someone who supports justice for everyone? Do not conservatives aspire to the same goals? I have heard conservatives complain that liberals theorize about concepts, but can be cranks who tyrannize their spouses, offspring and friends. And I have heard liberals complain that some of their conservative friends are kind and generous on a personal level, but have no compassion or concern about specific groups of people, like, for instance, the homeless or the uninsured.
Whatever those terms connote, it looks like neither conservatives nor liberals have exclusive rights to the moral high ground. David Brooks, who some consider a conservative columnist, wrote a month or two ago in the New York Times about notions of morality. Brooks notes that Princeton Professor Kwame Anthony Appiah, in his book, Experiments in Ethics, posits that decades of experiments have led psychologists to question traditional philosophical notions of morality. We act in moral ways sometimes, but not always. We can be generous and courageous in some situations, and downright despicable in others. And this goes for liberals and conservatives.
Appiah acknowledges that there may be a seeming conflict between the philosophical conception of a consistent moral character and the results of scientific experimentation that show otherwise. But Appiah contends that moral philosophy and scientific empiricism are compatible and can have a “conversation.” The recent debate over health care and other public issues leads me to believe a “conversation” is not taking place between liberals and conservatives.
And this brings me to two unabashed liberals, both friends of mine who passed away within one day of each other. I bet that everyone who knew these two remarkable persons would agree that they both embodied a consistent moral persona that I am certain scientific experimentation would have verified.
I speak of activist Alice McGrath and civil rights lawyer Bob Berke. I was fortunate to have spent time with both of them, just days before their passing.
Alice became famous for her fortitude and commitment to justice as Director of the Sleepy Lagoon Defense Committee. The play, Zoot Suit, by Luis Valdez, tells the dramatic story of this famous trial in which twelve Mexican-American men were tried for murder in 1940. The convictions were reversed in People v. Zammora, 66 Cal.App.2d 166 (1944). The trial was infected with racism and hostility towards the defendants. The appellate court found the evidence insufficient to show defendants conspired to commit murder (id. at pp. 201-202) and chastised the trial judge for disparaging remarks he made about defense counsel in the jury's presence (id. at p. 215).
Alice, diminutive, stunningly beautiful, possessing a will of iron, but always with a twinkle in her eye, fought for social justice all her life. In her 80's, she developed a legal aid program for poor people in Ventura and led numerous study groups to Nicaragua and Cuba. In 1991, Alice accompanied the justices of my division of the Court of Appeal and others from various disciplines on such a trip to Cuba.
We visited the courts and law schools. Alice promoted and encouraged frank discussions with judges and government officials about our differences. Alice and I had many lunches together during which we engaged in animated discussions about literature, politics and religion. And then I lost this great friend. She died November 27th at the age of 92.
Bob Berke was one of the great civil rights lawyers of our day. An indefatigable worker, he refused to give up. I first met him when he was a public defender in my trial court in the 1970's. Like Alice, his commitment to justice was built into his DNA. Bob is credited with helping establish case law allowing criminally charged defendants discovery procedures into police misconduct. He was victorious in public interest lawsuits and secured reversals for defendants whose convictions were based on suspect jailhouse informant testimony. He was handsome, vital, warm and engaging. Again, like Alice, he was someone you could not help but like. He and I had lively discussions about the law, the courts and politics. And a few weeks after our last discussion, he died quite suddenly on November 28th from a form of encephalitis at the untimely age of 61.
The deaths of these two vital individuals take me back to David Brooks' insightful observations. At the end of his column, he remarks that Spike Jonze's film, Where the Wild Things Are, illustrates how the difference between the philosophical and psychological may find resolution. Max, the protagonist, quells the wild impulses within him, but not through the force of reason and self-analysis. These tools are often no match for impulses and instincts that come from evolution, culture and upbringing. Instead, weakness, fear and selfishness are subdued when Max is focused on building a fort or being involved with someone else. Brooks theorizes that "it is possible to achieve momentary harmony through creative work."
And that explains how Alice McGrath and Bob Berke lived their lives. Their moral compass never lost its course because they directed their dissatisfaction with injustice through action, not ranting, not verbal attacks, but doing. They took time to consider other points of view and responded to their adversaries with civility--a good model for all of us, for liberals and conservatives alike. I would like to see everyone adopt this approach as a New Year's resolution. By "everyone," I include politicians and judges everywhere, even in California. And when you ponder what to do about a homeless person in distress, you will make the right decision.
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