“We are all in this…

…together?” My wife Barbara and I, appropriately masked, were taking a walk in the neighborhood. Our next-door neighbor Lucille drove by on her way to another neighborhood. She stopped, put the car in neutral, adjusted her mask so we could hear her better, and said, “Time to see some different houses and different trees.” I nodded in approval and said (hate to admit it, so embarrassing)… I… said… “We are all in this together.” At least, I did not use the word “actually” before the word “said” in the preceding sentence. With undisguised scorn, Lucille said, “I don’t believe what I just heard you say. You of all people. I am sick and tired of hearing that dreadful slogan.” Lucille’s disdain is justified. Whatever we are in, we are not acting as though we are “in this together.” Lucille was also right to call the exasperating phrase a slogan instead of a cliché. Clichés generally express thoughts or ideas that most of us accept as true. Through overuse, most have become trite and unoriginal. Slogans on the other hand may or may not have anything to do with truth. But, as we are learning day to day, what is true is under attack. To repeat what I have written about before in past columns and elsewhere, facts are. The phrase “true facts” is redundant. “False facts” is a meaningless contradiction. Yes, I used the intransitive verb “is” in the preceding sentence because “phrase” is implied. And if I am wrong, I don’t care. Where were we? Oh, yes, facts. Of course, adjectives other than “true” or “false” may be applied to facts; “horrendous,” “remarkable” are sufficient examples. Refuse to use “incredible.” Ok, it is a popular expression to describe what is… remarkable? But why “incredible”? Are so many things “incredible”? With old age, I am getting shorter, if that’s possible. When they measure my “height” in the doctor’s office, I am known as the “incredible shrinking judge.” Why are so many events, people, and things incredible? That means they are not believable, cannot be. Fine, but use it sparingly. And under no circumstances, please do not use the ubiquitous “amazing.” That its use is so prevalent amazes me. A few more comments about facts in the legal profession. The recitation of facts in a motion, an opinion letter, a brief, a statement of decision, or an appellate opinion is often, if not always, the most important part. It is rudimentary that the law flows from the facts. Lawyers interviewing clients must ferret out the relevant facts to determine whether to take the case, and, if so… to then determine whether the client has the retainer. Best to do this in that order than the reverse. Yes, there may be honest differences of opinion about what the facts are, or what are the relevant facts. But once that decision is made, our profession demands that the “relevant” facts be stated with scrupulous care. My colleagues and I are amazed, I mean chagrined, when on those rare occasions a lawyer flagrantly misstates facts that are belied by the record. What were they thinking? Another overused phrase. Notice that in the penultimate sentence in the preceding paragraph I used “they” to refer to the singular “lawyer” in the sentence preceding that sentence. If you did (probably not – who would?), it was deliberate to avoid the awkward “he or she.” I wrote about this phenomena ad nauseam, I mean, in detail in my last two columns. You may recall (again probably not) that after a futile struggle, I join the ranks of those who find the current use of “they” to refer back to a singular noun perfectly acceptable. My good friend Professor Marvin Zuckerman pointed out in my last column that “they” had been used in this manner for centuries, citing such writers as Shakespeare, Dickens, and Austen. Yet another writer notes that the use of “they” by these writers refers to characters speaking in novels and plays where informal usage is de rigueur. Using it in formal or expository writing may be another story. But whether in so-called informal or formal writing, gender neutral pronouns work, and provide for more succinct writing. Enough of “he or she,” and other awkward phrases occasioned by our language’s lack of a common gender third person personal pronoun. Some of that evolution is engendered by the long overdue acknowledgment of women’s contribution to our civilization. Now nearly a third of our state’s appellate justices are women. Our Chief Justice and two other women sit on our Supreme Court. Nearly one-third of our 106 Court of Appeal justices are women, and these include presiding justices. And that number may increase if ever I retire. And that’s a tough decision. I have been threatened with great bodily injury if I do, and great bodily injury if I don’t. But in evolving toward a more fair and equitable society where there is no discrimination, let us all acknowledge that “we are all in this….”

Obscenity

No intended obscenity in this column. So why the title? Because like so many other concepts based on beliefs or values, obscenity cannot be clearly explained. “I know it when I see it.” Justice Potter Stewart’s unforgettable phrase in describing – or should I say – his inability to describe obscenity but having little doubt about what it is. (Jacobellis v. Ohio (1964) 378 U.S. 184, 197 (conc. opn.).) He acknowledged, “I could never succeed in intelligibly [defining obscenity].” (Ibid.) He admitted with refreshing candor that he would not even attempt to define what materials fall within that definition. But he had no doubt in deciding whether the film, which was the subject matter of the case, was obscene. At the conclusion of his famous pronouncement he wrote, “[A]nd the motion picture involved in this case is not that.” (Ibid.) What a relief. Case decided. But is Justice Stewart to be praised or vilified for basing his decision on certainty without a specific concrete definition of obscenity? What could be more uncertain? Or is obscenity a concept that is so elusive and subjective that the definition can only exist in the mind of the beholder? Some have argued that films depicting scenes of violence are obscene. Hitchcock’s Psycho comes to mind. That I jumped out of my seat during the shower scene I attribute to expert editing. I still mourn for Janet Leigh. She had such a brief appearance in the film. How often does a major star die in the first few minutes of a major film? Why didn’t her agent bargain more forcefully for a change in the script? Sorry, I got carried away. Where were we? Oh, yes, obscenity. Not really, just using that as an illustration of a theme regular readers know I obsess over uncertainty. To say its presence is pervasive suggests it is something apart from what we perceive and think we know. Uncertainty simply is. Perceptions of what we are and how we behave are not universal. And judges are not exempt. The Jacobellis case illustrates the law is dynamic, reflecting changing mores and societal attitudes, often with the judiciary playing catch-up. At his confirmation hearing, then Chief Justice Roberts designate must have had his tongue inching along his cheek when he informed the inquiring senators that the Supreme Court calls “balls and strikes.” Yes, but it also changes the rules of the game. Courts interpret and apply the law to facts. The courts may interpret facts in various ways, but that interpretation must cohere. Facts may not be altered or changed. Woe to the lawyer who “stretches” or misstates the facts. But however faithful judges are to facts, their opinions are expressed in words. And the changing perceptions of how we interpret the world is reflected in our changing language. And words are what judges use to fashion their opinions. To add to the law’s uncertainty, it is unfortunate that many Supreme Court opinions are fragmented into separate concurring, dissenting, partially dissenting, and not quite concurring, and concurring with caution opinions. “Can’t they just get along?” Often, I ask myself, “So what is the holding?” And if I think I know what the holding is, do I have confidence it will apply in what I think is a similar situation? Yes, the tools of a judge’s trade are words. In addition to being absolutely sure that the facts are accurately stated, the words used to examine and analyze those facts may color how the reader responds to the opinion. In articles and lectures I have warned lawyers and my colleagues that facts should be powered by verbs and nouns. Beware of adjectives and adverbs. And let us be careful of how our words may be perceived. What is the middle ground between rigidity and flexibility? How do we balance sensitivity to changing mores against slavish adherence to what is politically correct? Let’s examine the first sentence of this paragraph as an example. “The tools of a judge’s trade are words.” Other than the sentence being unoriginal and trite, I am perfectly comfortable with it. Should I worry that a colleague or anyone would prefer I had used “profession” instead of “trade”? I hesitate to use the current “give me a break,” or “please.” No, on second thought, I will use them. This is a column not a judicial opinion. In judicial opinions and briefs we must be sensitive to our changing language and how expressions may be perceived or interpreted. For example, in my April column “House Arrest,” I wrote about my additional household chores during my current homebound COVID 19 quarantine, which included cleaning the toilets. In the final draft, I wrote that in evaluating my performance my wife was “stingy with praise.” In an earlier draft, I had written “niggardly with praise.” The origin of “niggardly” goes back to the 14th Century and comes from Middle English “nyggard” and means “stingy.” Of course, I knew it sounds like the extremely contemptible word that racists use to describe Black people. I originally thought that should not be a reason to use what had been a perfectly legitimate word before bigoted ignoramuses concocted a word that had a similar sound. Perhaps I was unconsciously uneasy. I showed my column to a few friends in addition to my wife before submitting it. They advised not to use the word. One of them, a close friend and a highly respected superior court judge, argued that substituting another word for “niggardly” would not be, as I contended, an overly sensitive capitulation to political correctness and the debasement of our language. Her counter argument was that closeness in sound to the two words makes any reader think of the contemptible word and detracts from what I am writing about. This has nothing to do with political correctness. So you know what I did. Was I right? Another troubling grammatical usage that concerned me was the use of “they” to refer back to a collective noun as in “when the jury decided the case ‘they’ had no trouble finding the defendant not guilty.” I generally used “the jurors” to correspond to “they.” I had a bigger problem with the proper pronoun for “the police,” or “the government.” And how about, “When a defendant asks for a lawyer, they are entitled to one.” This drove me nuts, but it avoids the cumbersome “he or she” and is gender neutral. And using “she” as the operative pronoun instead of “he” is like bragging how politically correct one is. I have it on good information and belief that this new gender use of “they” is being contemplated for use at the judge’s discretion in jury instructions. I discussed my initial discomfort with this ungrammatical use of “they” with my good friend Professor Marvin Zukerman, whose many books involve translations of Yiddish literature into English. He quoted sources that legitimized this usage. In a Dictionary of Contemporary American Usage by Evan Evans (1957), “The use of they in speaking of a single individual is not a modern deviation from classical English. It is found in the works of many great writers, including Malory, Shakespeare, Swift, Defoe, Shelley, Austen, Scott, Kingsley, Dickens, Ruskin, and George Eliot.” If it’s good enough for George Eliot, then I’m in. Notice George Eliot has both her first and last name mentioned. Yes, George Eliot was a woman and masterful Victorian novelist. Her real name was Mary Ann Evans. I let you guess why she changed her name. Hey, it just occurred to me George Eliot and I have something in common. We both have first last names. I wish we had more in common. But getting back to “they,” I am now convinced that if a person wishes to use “they” instead of “she or he” or “he or she,” they have every right to do so. Professor Zukerman points out that H.W. Fowler’s Dictionary of Modern English Usage (1965) says, “In colloquial usage the inconvenience of having no common sex personal pronoun in the singular has proven stronger than respect for the grammarians, and the one that is available in the plural is made to serve for the singular too.” And my Oxford Miniguide to English Usage (1983) at page 249 acknowledges that a grammatical difficulty “arises” because “English has no singular pronoun to connote common gender.” It gives examples where well-known writers, following earlier grammarians’ advice, used “his” when gender was not indicated. But at page 250, it states, “Popular usage… for at least five centuries favored the plural pronoun.” Example: “Nobody would ever marry if they thought it over.” G.B. Shaw. We can sum up how our language changes by Ben Jonson’s poem cited in Zukerman’s book Words, Words, Words (McMillan 1974). Much Phrase that now is dead Shall be recviv’d And much shall dye, that now is nobly liv’d If custom please at whose disposing Will, The pow’r and Rule of Speaking Resteth still. Ben Jonson (from English Dictionary, by E. Coles, London, 1717)

House Arrest

Now I know what it’s like. I am under house arrest. Yes, I know I am not the only one. But I have a probation officer. Her name is Barbara. She is tough and monitors my every move. It’s not a picnic. Her rationale: She loves me. It’s mutual. Imagine the many defendants on probation with probation officers who don’t love them. But I keep busy. I have gained expertise in cleaning toilets. I also assist changing sheets and dusting. But despite my herculean efforts, my probation officer never seems satisfied. Take cleaning toilets for example. I think I am good at it. My probation officer is stingy with praise, but encouraging, if you would call a long exhale with eyes looking upward encouraging. Once I went out without first checking with my probation officer. We need not go into the details of the violation hearing. After the plea of guilty with an explanation, the probation officer was on Amazon checking out ankle bracelets. Question: Is anyone reading this column during this crisis period of the pandemic crisis period? Doesn’t matter. I am still writing it. What else do I have to do? Plenty. The Second District Court of Appeal is open electronically. Staff and justices are in touch with one another via email. Research continues and so do writ conferences. In addition to my constructive duties at home, I, like so many others, am reaching out to friends with whom I have lost recent contact. I called my old (well, we both are old) law school classmate Joel Wallock. We reminisced about our experiences in law school so many years ago, 1960 to 1963. Yikes! I still remember the first day in class at what was then called Boalt Hall in Berkeley. Dean William Prosser, the famous Prosser on Torts, greeted the new class with these encouraging words, “Look to the right; look to the left. One of those persons will not be here next semester.” I looked to the right and then to the left and went into shock. I was sitting on the aisle. Speaking of shock, reminiscing with my classmate and friend Joel brought back memories, some of which I would like to forget. Example: My tax professor who knew the tax code and regulations by heart. The first day of the second semester he asked a question relating to a problem we had touched on during the remaining minutes of the last day of the tax class of the previous semester. That previous class had been taught by a different professor who displayed a rare quality I greatly admire: mercy. Several weeks had passed before the second semester began. I know you are way ahead of me. The tax class assembled for the first day of the second semester. I don’t have to tell you that the first question the tax virtuoso professor asked related to the problem briefly discussed at the end of the previous semester. The classmate who was first in his class and later clerked for five Supreme Court justices in five countries and rewrote the constitutions of seven emerging nations, taught at 17 law schools, and rewrote the Restatement of Law on six different subjects did not know the answer to the question. I do not remember the problem. How could I? One must understand the problem to remember it. But I do remember the professor’s interrogatory following his statement of the problem. “How would you resolve this conundrum… Mr. Gilbert?” The sighs of relief of my classmates reverberated throughout the classroom like the sighs of souls in Dante’s purgatory who were spared the descent into the inferno. What followed was not pretty. My cat, now deceased, was more compassionate with a mouse he once caught and “played” with until the coup de grace. My feeble attempts to rescue the poor mouse were as futile as my attempts to parry with the relentless questions of my tax professor. Robert Burns, who penned the poignant “To a Mouse, On Turning Her Up in Her Nest with the Plough,” would understand. This lying-in-wait ritual continued until mid-semester when my savant tax professor hit me with an extremely complicated corporate tax problem. I nailed it. I responded with alacrity and insight to his hypotheticals that required nuanced responses. He complimented me. Dante’s Paradiso shined its heavenly light upon me. The nods of approval throughout the classroom subsided as my classmates realized I would be spared for the remainder of the semester. One of them would be next. I gained a valuable insight from this experience which I pass on to you: studying pays off. Interesting that 40 years later this incident stays in my mind. My initial failure is far more interesting than a success story. Maybe that explains why Dante’s Inferno is so much more interesting than his Paradiso. But traumatic experiences spawn creativity. My role as sparring partner with my tax professor must have been the motivation to write a piece for an underground newspaper in Berkeley. I think it was called “Slate.” The piece I wrote was a parody of Kafka’s Metamorphosis. The paper titled the article “Student Bugged While Taking Exam.” I wrote under the ingenious pseudonym Arturo Gilberto to hide my identity. The disenchantment over my experience in tax class may have contributed to my decision not to attend my law school graduation. It turned out that the faculty graduation speaker was my tax professor. And his topic was a refutation of my article. Enough past reflections. Now I will get back to reading The Plague by Albert Camus. Hope this provided a respite from other concerns. As I mentioned earlier, our courts are functioning as best they can and appellate courts are functioning electronically. We are deciding cases. When this crisis ends, and it will end, the way we conduct business will change dramatically. And we will reestablish the in-person intimacy we need with other people. I urge you to take all precautions to protect your health and safety and to continue to work and be productive to the extent that is possible. To quote the Second District’s fearless and calm Administrative Presiding Justice Elwood Lui, “This is a time, not for paralysis, but for effort and ingenuity.” P.S. I do not have to ask who is our most revered lawyer, editor, and composer. Today is our dear Selma Smith’s 101st birthday. This is the day that the number of years she has graced the world with her presence exceeds by one the number of compositions she has composed. Barbara and I sang Happy Birthday to her over the phone. We traded several quips. We love you, Selma. Happy Birthday.

To Be Educated Or Not To Be Educated,

The Daily Journal is a legal periodical. Right? Any reader who disagrees, I advise not to read the remainder of this column. It is not surprising that numerous articles and columns in the D.J. are about recent Supreme Court, lower appellate, trial and federal court cases. The lawyers who argued those cases sought to achieve a satisfactory result for their clients. And the lawyers who represented the clients who prevailed (a better characterization than “won”) hoped the clients were satisfied. (Brief aside for columnist’s sudden recall from private practice decades ago: also hoped the clients paid.) Satisfaction all the way around is the best kind. Oh, you want to know why I prefer “prevail” over “win”? Trials are not sporting events. That the press, entertainment industry, or some clients characterize a “good” result as a win does not mean we in the legal profession should. The form and manner in which adversaries contest cases may bear a superficial similarity to opponents squaring off in a sporting match. But such a shallow comparison ends there. Whatever the result in a particular case, I like to think that when the judiciary is independent, justice wins over injustice in most, if not all, cases. But what about the precedential value of a case? The holding helps lawyers advise their clients about what is likely to happen if the client pursues a certain course of action. But to cover themselves, lawyers know there is no certainty in life or the law. The stock answer is: “It all depends.” And why is that so? Because different facts may or may not fall within the holding of a particular case. But many writers in this and other publications often express their perplexity in determining what is the holding of a particular case. And that is cause for concern. And can you believe? Even some of my opinions have been subject to that inquiry. There are insightful articles that appear in this and other journals concerning valuable techniques for writing coherent appellate briefs. Myron Moskowitz comes to mind. But I do not recall articles in the Daily Journal concerning tips on writing appellate opinions, even by anonymous writers. I won’t ask, “wonder why?” By now it should be obvious I am leading up to something. And this, in itself, may be grounds for criticizing this and other columns I have written. Why lead up to a subject? Begin with it –a good rule for an appellate opinion. But my test here is: If a reader takes the time to read the first paragraph, does she or he (or “do they” – an accepted deviation from proper grammatical usage) want to move on to the second, and so forth? If so, I reject the criticism. Now I forgot… oh, yes, what I was leading up to. Will save additional thoughts about opinion writing for another column despite the risk in doing so. Cannot be friends with everyone. To some extent I believe that problematic holdings in complex or hard cases are the result of something beyond or in addition to problematic writing. Ross Douthat’s column in The New York Times (Jan. 11, 2020) with the foreboding title “The Academic Apocalypse” caught my attention. I did not need Douthat to tell me the bad news from an article “Endgame” in The Chronicle of Higher Education. Douthat quotes the opening text, “The academic study of literature is no longer on the verge of field collapse. It’s in the midst of it.” I do not agree with Douthat on many political issues, but I do subscribe to his agreement with Professors G. Gabrielle Starr and Kevin Dettmar of Pomona University that the humanities “teach disciplinary procedures and habits of mind… [from which] we model a style of engagement of critical thought….” What has been taught and learned in the past is worth preserving and gives us tools for critical thought and expression. Neglected artists and thinkers from the past and from other cultures also should be embraced, but not studied exclusively as a replacement for the entire canon of what was written and thought in the past. To ignore works of the past because of the lifestyle or views of past thinkers is short sighted. Better to consider those ideas of the past that teach and enrich today. I could not bring myself to write “throwing the baby out with the bath water” or “separate the wheat from the chaff.” Hey, I just did. These bromides are no less true because they have been repeated … and repeated. I was inspired by Professor Herbert Morris, a philosopher, past dean of the humanities at UCLA, and a law professor at the UCLA School of Law, to teach a course for many years at our Judges College, along with retired professor and well known appellate lawyer Robert Gerstein. Our course focused on ways judges might decide hard cases for those in which there were no easy answers. To help students arrive at an approach to this task, they read selections from legal philosophy and literature. This included Shakespeare’s Measure for Measure, a multi-layered play that provides invaluable insights into our justice system today. Yes, a broad-based knowledge of the humanities makes for a more critical thinker who can articulate and write clearly. Many judges who took the course still tell me how it enriched them in ways that provided valuable insights into articulating the reason for their judicial decisions in addition to enriching their lives. As David Brooks pointed out in a column about education in Scandinavia (The New York Times, Feb. 14, 2020), our system of education now emphasizes “the transmission of specialized skill sets.” This is certainly an important component of judicial education. Learning the ever-changing rules of sentencing in criminal cases, navigating the complexities of class actions, and allocating property in family law cases are vital. So is being aware of bias and understanding norms of behavior in our multicultural society. I appreciate there are constraints on a judge’s time and energy. But there is more to being a good judge than mastering technical proficiency. There is more than doing and thinking only about how best to do the doing, more than learning the practical to accomplish the task. To be educated only in one’s profession is an impoverished education. I believe coherent holdings can be achieved with a broader understanding and appreciation of cultures, literature, and the arts, today and from the past. It leads to clarity of vision and clarity of style, and a little help from the Oxford Modern English Grammar and Strunk and White would not hurt.

Taking Credit or Blame for the Future

Because Valentine’s Day occurs this month, and I love the law (most of the time), love requires honesty. I publicly state what I thought when I was practicing law, and what I knew for certain when I became a judge so many decades ago: Judges are not always knowledgeable. This is not an indictment, but an acknowledgement that we decide cases involving a myriad of subjects, about which we know… nothing. Through motions and evidence, we acquire the knowledge it takes to correctly, we hope, apply the law. Judges are perpetual students. Attorneys, who write briefs, motions, and arguments for them to read and to hear, are teachers. Whether admitted or not, everyone in our profession knows this. And the peculiar nature of this relationship is that the students, the judges, have all the power. Eons ago, when I was a college student, it appeared to me that students were true pupils, and their professors were, in fact, the teachers. Often the teachers imparted “knowledge” and, on occasion, wisdom to their guileless students. But of more consequence from the student’s perspective, was the teacher’s power to determine the student’s destiny. Recent conversations I have had with professor friends lead me to believe the student-professor relationship has undergone a radical transformation. This subject we will explore in a future column. Judges are sophisticated students (we hope), but they are not the last word. We have in our system an appellate mechanism to “correct errors.” But no matter what the particular profession, perfection is beyond human reach. The more we learn, the more we learn how much more there is to learn. Judges, lawyers, and all those who are called “professionals” bear the burden of expertise. We carry a mantle of authority that creates an expectation of competence in those who rely on our expertise. We make mistakes and can only guess what might happen in the future. Reversals and negligence actions may determine to what extent we are responsible for future events. It is easy to take credit for guessing right, but often painful when wrong. A friend of mine Dr. Joye Weisel-Barth is a psychologist-psychoanalyst. I have written about her in past columns. She is well-respected in her field and writes in a clear, compelling prose accessible to the lay reader. A few months ago, she delivered a paper entitled “Bad Faith and Analytic Failure” at the annual meeting of the Psychoanalytic Institute in New York. It will soon be published in The Journal of Psychoanalytic Inquiry. Dr. Weisel-Barth relates the story of one of her patients years ago when she was a new practicing psychologist, a story which to this day haunts her. It is not my purpose here to explore Dr. Weisel-Barth’s discussion of psychoanalytic snares, and how the existential concept of bad faith may adversely affect the patient-analyst relationship. The story, however, and its effect on Dr. Weisel-Barth bears a striking similarity to what judges and lawyers, and most everyone, experiences, how our decisions affect us and others. But we who have titles as professionals are expected to have the right answers. In those early years of her career as a psychologist, Dr. Weisel-Barth treated a 17 year old, David. Like many practitioners then and now, her office was a separate studio with a private entrance in her home. David’s mother was a professor of philosophy, and David was the “accident” of a sexual encounter in the “California commune culture of the 60’s.” The father? Who knows? David’s mother was not sure. She and her successful boyfriend were interested in David, but did not have adequate time to devote to him. His older sister was brilliant, and David felt like a neglected child. David suffered from social isolation, lacked motivation, had poor grades, and spent time alone in his room smoking dope. Dr. Weisel-Barth seemed to making progress with David. As the therapy progressed, David got a job, made friends, and thought about his family relationships. He was happy and looking forward to spending Christmas, only two days away, at his grandmother’s. He brought two gifts to Dr. Weisel-Barth, a box of candy and a marijuana plant in a small red pot. Dr. Weisel-Barth expressed her appreciation for the gifts, but told David she could not accept the marijuana. Possession was a crime then, and Dr. Weisel-Barth did not want her young children exposed to drugs. She tried to explain that to David. He seemed disappointed. Nevertheless, he left the plant on the doorstep where her young son found it and knew what it was. Dr. Weisel-Barth writes, “I don’t think he’s ever been more impressed with my work than at that moment.” Dr. Weisel-Barth looked forward to future sessions where she could work things out with David. What Dr. Weisel-Barth found out later from the mother’s boyfriend, and later from David in his jail cell, was this harrowing turn of events. Early Christmas morning David had an “awful argument” which ended with his mother and sister leaving for the grandmother’s holiday party without him. He was left home alone with the Christmas gift his mother left him, a rifle and ammunition. Looks like the mother also needed therapy. On the mother and sister’s return from the party, David shot the mother and watched her body twitching on the floor before she died. His sister gave him money and the car keys and “urged” him to drive to Mexico. He drove a few blocks and then returned and killed his sister because she had been a witness. Dr. Weisel-Barth visited David in jail and was horrified by his “emotionally barren and self-justifying account of the murders.” Dr. Weisel-Barth sees her treatment as a “therapeutic failure.” She blames herself for her revulsion of how the crimes were committed and her refusal or inability to deal “honestly with the affective therapeutic issues.” She concludes her revulsion at David’s brutal act and her desire to never see him again were violations of her therapeutic agreement with him “to deal honestly with the affective therapeutic issues: Bad Faith!” From my perspective as a layperson, I think Dr. Weisel-Barth may be too hard on herself. To what extent can a professional be so detached from her or his own emotions to always maintain professional detachment? Criminal defense lawyers constantly face this question. The practitioner is also human. In Dr. Weisel-Barth’s case, I wonder to what extent her rejection of the marijuana plant is a significant factor in her misgivings about her relationship with David. Is it possible there is, however weak, a causal connection? Dr. Weisel-Barth’s paper brought back a memory of a case that still haunts me when I was a young municipal court judge. Appearing before me was a young mother charged with neglecting to protect her four-year-old daughter from her abusive husband. Young Judge Gilbert did not impose jail time, but gently cautioned, or was it lectured her(?), on the importance of protecting her child. She smiled, thanked me, and promised to do all in her power to protect her child. I felt good at how I handled the case, perhaps a bit smug. A month or so later she appeared in front of me again, this time to have her misdemeanor case dismissed. Why? Because she had just been arraigned on a felony for the murder of her husband. As she looked “up” at me from the lectern where she stood with her attorney, she smiled with what I sensed was pride. Was she telling me, “See, I did what you asked. I protected my daughter”? I realize I may be placing too much importance on how I felt and what I said to this defendant. Like Dr. Weisel-Barth this event in my professional past still haunts me. But it opens for reflection and discussion to what extent an incident, a moment in our past, is significant within the endless chain of what we think is cause and effect. Is there more than a hint of self-importance even in the admission of what we perceive may be a failure? It all comes down to the unanswerable question of where notions of cause and effect lead and where it ultimately takes us. Are our decisions and actions a significant factor in a perceived chain of cause and effect, or is this just an imaginary construct? We do something and what happens later may have nothing to do with an earlier event. I hope to explore this dilemma in future columns, but for the time being I suggest we do the best we can and approach our decisions thoughtfully and with a great deal of humility.

Zygote!

New Year’s opening: no resolutions. At my age, it’s too late. And no clichés about it never being too late. Better to begin with a mea culpa. Everyone loves a mea culpa. The admission of one’s shortcomings is a real attention grabber. Lawyers who tout their victories are the biggest bores. Even I must endure these braggadocios now and then at legal functions. There are, however, occasional instances when a young lawyer, seldom an older one, apologizes for a bad oral argument he or she thinks they made in my court. I seldom do not have the slightest recollection of these misperceived failures. My usual reply: “Please, don’t give it a second thought, you were terrific,” or, if I have a slight recollection, “You were fine, and your brief adequately covered the salient points.” These “stretches” are not muttered under penalty of perjury. And if the foregoing raises questions about the value of the constitutional right to oral argument, I defer that perennial inquiry for another day. But here’s a hint. Write a good brief. My lapse occurred in my December 2019 column. I received almost as many responses to that column as those in which I have written about cats. I hesitate to bring this up because it was over such a small, I would argue, excusable mistake. I misspelled “de rigueur.” I wrote “di” instead of “de.” Well, it is a foreign word. I never said I was perfect. And, yes, I wrote in the December column that a decent writer knows whatever he or she writes is not simply written, but, if it’s worthwhile, rewritten. And that involves the tedium of going over what you have already written. It surprised me that no one noticed a logical inconsistency in a phrase I wrote in the middle of a sentence, “I often hug people on occasion.” I suppose I could defend this apparent contradiction by arguing that on various occasions, say a birthday or a special holiday, I hug people. But that is not what I meant to say. I often hug people whatever the occasion with what I think is an acceptable regularity; acceptable because the people I hug are often offended when I don’t. “What, I don’t get a hug?” So, after enduring the phone calls and emails about “de rigueur,” I ask or write, “But did you get …?” The response is an interruption with something like, “Get what?” “One of my points,” I respond. The reply is something like, “You make so many, it’s hard to keep track.” In fact, one friend complained that there are so many topics in my columns that he is confused. He informed me that his grammar school teacher taught the class that when writing an essay, it is absolutely necessary to stay with one topic. No doubt that explains why his grammar school teacher never taught in college, let alone in high school. I must confess to the inward satisfaction I derive from inserting a few obscure references, or an acrostic now and then, in my columns. This practice is to be avoided in opinions and briefs. See People v. Arno (1979) 90 Cal.App.3d 505, 514, footnote 2. I think I picked up this annoying habit from my days as a lawyer in private practice. Our cards and stationery were a refined parchment. The firm and our names were embossed in Bodoni typeface, named after an expert printer in the late 18th century. Not to be confused with the Italian painter Boldini. The senior partner commented that only one in a hundred people would appreciate the quality, but it was worth doing. We wore silk suits with monogrammed shirts. That was then. I became a judge so I could wear jeans to work. Please don’t report me. I call our court the think tank with tank tops. Where was I? (The grammar school teacher would disapprove.) Oh, yes, the one point in my column that few people “got.” Of course, one doesn’t write a column so that readers “get” a cryptic point that a self-involved columnist writes. So, this is not an indictment of those who missed a point that I “hid” in plain sight. This relates to one of the topics I explored in my December column – the prevalent and revolting use of profanity. To be clear, profanity has its place when used sparingly in an appropriate context. My specific gripe was about the use, or, more specifically, my use of a single syllable profane word that revolts me. I am sick of it, not because it is profane, but because it no longer is. It is used with such frequency that it has become boring and unimaginative. So, I devised a substitute word. The careful reader (that assumes with most evidence to the contrary that columns are read with care) might get my point. But who reads a column with care over a morning cup of coffee? In my December column, I did mention my substitute word – “Zygote.” Biology majors had little trouble defining its meaning, but not everyone made the connection I had in mind. No doubt this is due to the shortcoming of a columnist who does not stick to one topic. And who has the time, let alone the interest, to look it up in a dictionary? I suppose a better word would have been “gamete,” but that sounds too much like “Damn it!” Of course, a single syllable word would be superior, but I could not find one that has an association with the word it replaces. Oh, well. So, with this my first-of-the-year column, in which I am half-way through my 32nd year of writing Daily Journal columns, I wish you who have stayed with me, to this my penultimate paragraph, Happy New Year! Penultimate, because I just thought of something. We will know if it’s truly a happy new year in November. Yes, I know judges are not supposed to express their political opinions. But I have not done so. How the election turns out will make it a happy or hopeless new year. This depends upon who wins. From my point of view, if my candidate does not win, we are ZYGOTED!

*@#!ing

This, my December column, occurs in the month when many readers may be vacationing, a perfect time to let it all “hang out” and admit to a flaw in my character. Isn’t that di rigueur these days? After writing the two previous sentences, in the first rough draft of this column, I had not yet decided whether I would in fact make such a revelation. Of course, you the reader will know whether I did because what you are reading, the final draft submitted to the Daily Journal, reveals my decision. I mention this as a courtesy to extend to those who have not already done so, the option to move on to some other piece in the Daily Journal. If you do, I sympathize. Like, who cares? Incidentally, the preceding paragraph proves that whoever the writer may be, most columns, essays, opinions, novels, grocery lists, are not merely written; they are re-written. “Written” includes dictating, scribbling, typing on a computer, an Underwood, Royal, or Olivetti. Advice to younger readers who do not know what the last three items in the preceding sentence are: visit the Newseum in Washington D.C. or delve into the past, if young people do that anymore. These days many people who, in one way or another have been censured, write books, make speeches, and give interviews, wallowing in mea culpas. What is the motive behind these shameless revelations? Perhaps it is the effort to save a career shattered on the unforgiving rocks of scandal, or maybe just the irresistible need to be noticed. This is to be contrasted with judicial revelations in the book “Tough Cases: Judges Tell the Stories of Some of the Hardest Decisions They’ve Ever Made” (The New Press 2018). I reviewed this book in my July 2019 column “Certainty and Solace.” In “Tough Cases,” trial judges from all over the country candidly wrote about their thoughts, doubts, and fears in presiding over and deciding cases, many of them high profile. To shamelessly quote myself, the book was “a profoundly moving account of judges revealing their inner most feelings and emotions in tough cases. Their riveting accounts of trials over which they have presided compels me to reveal what I have long suspected and suppressed for years: trial judges have the hardest and most demanding job in the judiciary.” That judges are human and not perfect is hardly a startling revelation, one that applies to all of us in all professions and walks of life. And being human reveals what is often the best in us as shown in “Tough Cases.” And in other cases, what is the worst. The standards of professional conduct in our respective professions compel us to monitor and refrain from certain activities. But we must take care that the image we seek to project through our profession is not a façade for who in fact we are. When a person in the public eye, whether judge, CEO, writer, painter, actor, musician, is “caught” committing a transgression, whether big or small, it is constructive for others in that profession to develop a heightened sensitivity over how their actions and comments affect others. See Justice Currey’s superb “teachable moment” in the recent case, Briganti v. Chow, 2019 Cal. App. Lexis 1168. But when such sensitivity is carried to extremes, we can lose our personality, our persona, our essence, who we are. For example, and this is not the flaw I mentioned at the beginning of this column, I often hug people on occasion, but only people I know well. My hugs do not discriminate on the basis of gender, race, religious affiliation, or political association. I admit, however, that lately I have been more circumspect concerning the last group. A few weeks ago, I ran into a female journalist I know and shook her hand. She asked in a bewildered tone, “What, I don’t get a hug?” Another example: I was walking down the street with some friends and passed a woman acquaintance. I yelled over to her “Hi Honey.” I was rebuked by one of our group for such demeaning familiarity. But her name is “Honey.” We are now closing in on obscenity and my flaw, well, one of my flaws — the use of obscene language. It is one thing to quote obscene language in a judicial opinion without sanitizing it with *@#!ing. A few years ago I invited readers to weigh in on the practice of quoting obscenity, spoken or yelled by witnesses and parties, in a judicial opinion. The overwhelming majority of readers voted it should be quoted if relevant to the issues or necessary to capture the flavor of the narrative. If a police officer asks a defendant a question and the defendant yells an obscenity at him, that obscenity might be quite relevant to what follows. But by virtue of the judicial office, a judge whether or not acting in her or his official capacity would be well advised not to shout an obscenity when frustrated or upset when others are nearby. So, there you have it. I often utter, shout, bellow, a single syllable repugnant word often, too often. This obvious word is used these days with such rhythmic regularity that it has lost its vitality. Lawyers often use this expletive when they receive adverse judicial rulings. Come to think of it, I was once a lawyer. No wonder. But unlike others who have confessed to misdeeds, I offer no apologies, no excuses, no pleas for forgiveness. Instead I have remedied my repetitive misdeed by way of a liberating substitute word that is reformative, and subtle; nothing unimaginative like the obvious and insipid “FUDGE!” I do acknowledge, however, that FUDGE bears the positive attribute of one syllable. The problem with my substitute word is that it has two syllables. But if uttered or yelled properly with the emphasis on the first syllable, this deficiency is slightly mitigated. This takes some practice. And I must also admit that my substitute two syllable word does not work well when used in the past tense. In this respect, even the boring “FUDGE” works better as in, “I’m FUDGED!” By the way I have gone on record supporting a proposed new rule governing judicial conduct. It would allow judges challenged in a recall election because of an unpopular decision to comment on the procedural and factual basis for the ruling within certain guidelines. This rule may be expanded to allow judicial colleagues to also comment on the controversial or unpopular decision to explain its rationale. If I think a judge or anyone for that matter is the object of unfair criticism and I can speak up in their defense, I will. When I see an injustice I yell… ZYGOTE! Postscript: Last week one of our premier lawyers David Pasternak passed away after keeping cancer at bay for many years. I did not hesitate to include this postscript about David despite the tenor of my irreverent column. Well, most of them are. And David would insist if I am going to say anything about him, it should be in a column such as this one. He had a curious sense of humor. He was president of everything including, the State Bar, the Los Angeles County Bar and winner of numerous well-deserved awards. He was a mensch, loved and respected by everyone. The last time I saw David was at a Dodger game with his childhood friend attorney Marc Sallus. Sallus noted that in addition to David’s brilliance and warmth as a human being, he was an “adventure.” To be more precise, when behind the wheel of a car, David provided passengers an adventure. That is one thing he and I have in common. David, we won’t forget you and you continue to be the model we strive to follow.

Who Knows?

I had planned for this column to appear as my last month’s September column. The only problem is I missed my self-imposed deadline. And this, in turn, requires a slightly different approach to my subject. A few months ago, I had the privilege of attending a symposium (sounds too intimidating) – how about a discussion between two distinguished constitutional scholars. Professors Adam Winkler, UCLA School of Law, and John Yoo, UC Berkeley School of Law, discussed their perspectives concerning the past term of the U.S. Supreme Court and what this augurs for the now new term. Their thought-provoking analysis was moderated by preeminent Superior Court Judge Mark Epstein (preeminent better than eminent). Most readers are familiar with the works of Winkler and Yoo. (Arrangement of names has nothing to do with favoritism. Winkler and Yoo more rhythmic than Yoo and Winkler.) To recite even snippets of their respective curriculum vitae would fill this column. Their books and articles challenge us to ponder and question. Question what? That I leave to you, dear reader. Just hope it isn’t, “What am I doing in the legal profession?” A good portion of their discussion was devoted to speculation concerning what the high court will decide before the national election. This took place at the Stanley Mosk Courthouse in Los Angeles. Digression #1. Columnist’s self-involved note that has nothing to do with the remainder of this column. Would have worked better had I written this column more than a month earlier, so that it could have been published the day after Labor Day. Stanley Mosk administered the oath of office to me, an officious way of saying, swore me in, as a judge of the Los Angeles Municipal Court on Labor Day, 44 years ago. (Yawn.) The municipal court no longer exists. Please note this digression does not appear in a footnote. Perhaps it should have, but I left it in the body of this column to segue to another annoying digression. Digression #2. Footnotes. They should be used sparingly in judicial opinions and almost never in columns. For the sake of comity, here I omit from this admonition law review articles. I have omitted detailed analyses of Supreme Court opinions referenced in the discussion. My reason? To write about them, one must understand them. I recall a journalist referring to the writing of a particular Supreme Court opinion as “impenetrable prose.” And there is another reason I eschew this onerous task: too many concurring and dissenting opinions… and … too many footnotes. Because Winkler and Yoo were so open and candid, I decided not to quote them directly. What follows is simply my gloss on their perspectives. This approach benefits them in the event subpoenas are issued. Better I appear at a hearing than they. I am older. See digression #1. An obvious principle one draws from any discussion about the U.S. Supreme court is the one we all know with certainty: certainty is not a staple of the law. The professors stressed that before the appointment of Justice Kavanaugh, the court shied away from deciding critical and controversial issues unless it had to. So why talk about what the court might do, much less write about it? Professor Yoo suggested it is like predicting the outcome of a baseball game. Point proven with the Dodgers’ fifth game. I think we do it because it’s fun to be terrified, or… hopeful. And fretting about and predicting the future are endemic to our species. Two important issues that were explored in the past term, however, are worth noting: stare decisis and administrative law. These issues, dare I say, are certain to be explored in the next term. Hope I haven’t lost any more readers. The justices had something to say about stare decisis when considering the double jeopardy clause in Gamble v. U.S., 139 S.Ct. 1960 (2019). (Whoops, just cited a case.) The high court did not overturn the longstanding dual-sovereignty doctrine. Defendant could be prosecuted for the same firearms violation under Alabama law and federal law. This was not considered the same offense even though the conduct is the same. The rationale to support this result is the dual-sovereignty doctrine. In an opinion by Justice Alito, the majority was reluctant to overturn 170 years of precedent. In a concurring opinion, Justice Thomas gave short shrift to precedent when reliance on it is demonstrably wrong. His solution is simply not to follow it. He has little use for the view expressed by Justice Breyer that we give consideration to precedent that is embedded in our national culture. Thomas argues if it is wrong, we overrule it. (Gamble, p. 1986.) When I think of Brown v. Board of Education, I see Justice Thomas’s point. He did, however, concur with the majority. There were two dissenters. Easy guess that Justice Breyer was not one of them. And easy guess about one dissenter in contradiction to my uncertainty principle, Justice Ginsburg. She agrees with Justice Thomas’s views about stare decisis, but rejects its application when it comes to double jeopardy. “Stare decisis is not an inexorable command,” citing Payne v. Tennessee, 501 U.S. 808. 828 (1991). Guess who wrote the other dissent? May I add the adjective “convincing” to “dissent”? Justice Gorsuch. But he is a likely ally of Justice Thomas in giving scant consideration to precedent when it is “troublesome.” In Franchise Tax Bd. v. Hyatt, 139 S.Ct. 1485 (2019), an opinion by Justice Thomas, the Supreme Court overruled Nevada v. Hall, 440 U.S. 410 (1979), and held that states retain their sovereign immunity from private suits brought in courts of other states. Apparently precedent was troublesome. On behalf of the dissenters, Justice Breyer argued, “The majority believes that Hall was wrongly decided. But ‘an argument that we got something wrong—even a good argument to that effect—cannot by itself justify scrapping settled precedent.’” (Franchise Tax Bd. v. Hyatt, p. 1505.) It was opined that if Justice Thomas has his way, precedents established in Gideon v. Wainwright, New York Times v. Sullivan, and Batson v. Kentucky, to name a few, would be overruled. See Thomas’s dissent in Flowers v. Mississippi, 139 S.Ct. 2228 (2019). And note majority decision written by Justice Kavanaugh. Another big issue on the horizon is to what extent the high court will curb the rise of the “administrative state.” How will the court deal with the so-called Chevron doctrine, Chevron U.S.A. Inc v. Natural Resources Defense Council, 468 U.S. 1227 (1984). Is it likely that federal courts will continue to be compelled to defer to federal administrative agencies’ interpretation of their own ambiguous rules? And there are those troubling gerrymandering and census population issues. So many questions. Do 5-4 decisions make the court seem political? Will Chief Justice Roberts secure allies in his apparent attempt to preserve the public’s perception of the court’s legitimacy and make it appear nonpartisan? Since the time of the bull session with Professors Winkler and Yoo, we now know the many issues the Supreme Court will hear this term. They include rights of gay and transgender employees in the workplace, DACA regulations, and abortion rights. Anyone certain about how these cases will be decided? I am chastened by game 5. “Go Dodgers” has a hollow ring. So does certainty. But one element of certainty occurred in the delightful exchange between Winkler and Yoo. Keep in mind that Professor Winkler is a frequent speaker on the Supreme Court at the progressive American Constitutional Society, and Professor Yoo speaks often before the conservative Federalist Society. Though at times each held opposing views, they took stock of the other’s perspective and often acknowledged the reasonableness of another point of view. This was all done with good humor, wit, and civility. Would like their talk to be required listening for Congress. Justice Gorsuch would approve. In his new book, “A Republic, If You Can Keep It,” he argues that civilization’s essential ingredients are “civics and civility.” Not so, argues Michael Hiltzik in an article in the Los Angeles Times last month titled “Gorsuch’s call for ‘civility’ is really a defense of privilege.” Hiltzik argues that civility is a way of keeping malcontents quiet. This appeal is “aimed at shutting down debate, not promoting it.” Hiltzik points out that equality, more than civility, is civilization’s essential ingredient. Sometimes the public is compelled to rise in fury. That may be a necessary last resort in extreme cases. But not when colleagues on a court, a legislature, or any deliberative body meets to discuss and resolve issues. I just hope that after conclusion of this Supreme Court term, I do not ask a question like the one on my mind this past week. How could they lose game 5?

Ware-R-U?

WARE R U? Or should I say where are us, I mean, we? At the outset… no, please, this is the outset. No need to tell you what you know; this is the beginning. Notice I omitted “already” to modify “know.” Redundant. And, yes, I often favor semicolons. They do good things in the interest of clarity, like stringing together closely connected ideas in two sentences. I read in the Financial Times that Amy Bleuel (not “one” Amy Bleuel) founded a movement called Project Semicolon. Ms. Bleuel wished to help others who like her suffered from depression. She advocated drawing a semicolon on one’s wrist. She stated this would be a reminder that “[a] semicolon represents a sentence the author could’ve ended but chose not to. The author is you and the sentence is your life…. [t]he story is not over.” The tattoo industry profited from the hundreds of thousands of people who joined the movement. I leave to the reader’s imagination the various spots on the body where the tattooed semicolons found a home. Tragically the story was over for Ms. Bleuel who took her life four years later. I hope that Ms. Bleuel’s creative and insightful metaphor for the semicolon offers emotional strength to those in her movement. Here, however, my focus is on grammar. Because it requires effort for proper use, the effort is worth it. Yes, the semicolon has always been controversial. And, unfortunately, some see its use as a sign of ostentatious superiority among the “educated.” “Use a dash, or just forget about it,” some “texters” argue. Kurt Vonnegut, a writer I admire, wrote that semicolons are “transvestite hermaphrodites” that represent “nothing.” “All they do is show you’ve been to college.” But Abraham Lincoln, for whom I have more admiration, was reputed to have said that the semicolon is “a useful little chap.” Come to think of it, imagine what things would be like if more people went to college. But enough about semicolons; let’s move on to other concerns. To quote Nobel Prize winner for literature Bob Dylan, “The Times They Are A-Changin’.” For the better? I recall my high school history teacher predicting that the future would consist of a three- to four-day work week of around four or five hours a day, leaving plenty of time for leisure. To quote from another song in a different genre and context, “Whatcha Say?” Hard to predict how things will turn out with so many variables. If we pay attention to detail, and think through a problem and how we express it, our opponents are less likely to sow confusion and rancor. One would think that would be the case if we had time. But we do. Texting, the grotesque transformation of a noun to a verb, like “partnering,” “transitioning,” “friending,” is a rush to express a point without time for reflection. This is in contradiction to concise critical writing that takes longer. And by the way, it was Pascal who wrote to his friend that he would have written a shorter letter but did not have the time. We unnecessarily compress our time. Instead, we must use our time, dare I call it leisure, to think and reflect. Brief apropos digression occasioned by a telephone call I just received while typing the preceding sentence. It was from the service manager at the dealership where I lease my car. The car had been picked up for servicing the day before and the service manager told me someone would be bringing it back today. Next came a question that confirmed my fear about the quick pace of our daily lives. “Is your address the same?” I told him we had not moved in the past 24 hours. Glad he laughed. To be fair, he was just confirming he had the correct address. He gets a break, so many others to call. The following observations concerning our President’s tweets are not political. They are statements of fact. That reminds me, “false facts” are a misnomer. Facts are. To call them true is redundant. Yes, they may be subject to interpretation; they may be challenged; they may even be distorted. But they are or they are not. Getting back to the President’s tweets. The damage stemming from haste is obvious. Grammar and its cousin thought are casualties. But an occasional gaffe we can excuse. Self-interest follows from the preceding sentence. The New York Times reported that the President tweeted: “their is nothing bipartisan” about Democratic Senator Mark Warner of Virginia. Bryan Garner, editor-in-chief of Black’s Law Dictionary and author of Garner’s Modern English Usage took the President to task for misuse of the word “their,” instead of the proper “there.” Would it be appropriate here to disclose that Bryan Garner wrote the forward to volumes I and II of Under Submission, my books of columns? And that Justice Sandra Day O’Connor wrote an introduction to volume II? And that all the proceeds go to legal charities and none to me or the publisher? Prefer not to receive emails in response to this paragraph or to comment on solecisms that may occur in this column. This includes punctuation errors, dangling participles, misplaced modifiers, and any ambiguities. Just occurred to me this request is bound to have the opposite effect. Oh well. But seizing on every little grammatical error subjects the critic to contempt for being an educated snob. This in turn allows those with base motives to attack education and deny it to those who may need it most. When the President tweeted about his condemnation of those who “pour” over his tweets, I did not condemn him for not using the word “pore.” And that has nothing to do with my having… how embarrassing… once made the same mistake. Well, if you misuse “pour” shortly after pouring yourself a cup coffee,… agree, not even worth a try. A lawyer who would make such an argument as an excuse for neglect would probably be sanctioned. And I suppose it is sacrilegious to point out Neil Armstrong’s error when he uttered the first words of a human being setting foot on the moon. Do I have to repeat it? He did not say “a man,” which would contrast with “mankind.” I read that years later a computer analysis of sound waves supports those who believe he said the word “a” before “man.” I don’t buy it, but Armstrong gets a pass. Who cares about this minor slip? He is the first person on the moon. He had other things to attend to. For everyone, and particularly those of us in the legal profession, clarity should be our guide. Some cynical advocates might argue that the weaker the case the better to obfuscate. Judges and opposing counsel most always see through that. When it happens, the profession suffers; and it suffers just as much when it happens because of carelessness instead of design. Of course, language is dynamic, fluid, and subject to change and usage. The rigid, grammatical Puritan is subject to ridicule and derision. But too much laxness leads down a dark corridor of ignorance. Former Los Angeles Chief of Police William Bratton’s “broken windows” approach to reduce crime serves as a useful analogy. It was more nuanced than a zero-tolerance policy of policing based on a rigid moralistic standard. It was a policy that recognized that low level crime leads to more serious offenses. The same applies to the expression of our thoughts. Contempt for education leads to contempt for careful thinking expressed in careful writing and speaking. And that threatens our democratic institutions. On Halloween, The New York Times reported a scary story. Testing by the research arm of the Department of Education revealed that 4th and 8th graders’ ability to read literature and academic tests has declined since 2017. Only about one-third of the students had proficiency in these subjects. That is not just scary; it is horrifying.

WHY?

August – the month that many of my readers are on vacation. So why write an August column? Other columnists take off a month or two during the summer. I should do the same. I want to go where my readers go, but I don’t know where they go. And I don’t even know most of my readers, other than a handful who tell me they always read my column. And how can I trust anyone who makes such an admission? One way is to look such persons straight in the eye. If they, and there are many, avoid my direct focus, I know they are lying through their teeth. Cliché. If I do take off a month or two in the summer, I would like my editor to write in the space my column usually appears, “Presiding Justice Arthur Gilbert is away.” This cryptic announcement will leave my readers wondering where I went, except for my wife who is apt to know. Of course, that assumes she reads my column. I know she does now and then when she remarks, “I can’t believe you wrote that”… “I prefer not moving from this neighborhood.” When broadcasters filling in for the regular host on the television news say, for example, “Judy Woodruff is away,” I wonder, where did she go? Is she on vacation? How long will she be away? Is she coming back? Because I surmise that most of my readers, who I hope exceed single digit numbers, are away this month, I can let my hair down and write about the many things that puzzle me, hence the title “Why?” I would be reluctant to express to a wider readership my puzzlement over so many mundane subjects. For example, in the preceding paragraph, why would I use such a trite cliché “let my hair down”? I could have written… no, I would never write “bare my soul” or “let it all hang out.” I simply could have omitted “let my hair down.” And why not do what I suggested in the preceding sentence and not even write this paragraph? To save space? To demonstrate editing? Wonder how the missing August readers would respond to those questions when they return in September? Why did the new leader of Britain’s House of Commons Jacob Rees-Mogg issue a memo that included certain admonitions? These admonitions were: “two spaces should follow a period, and phrases such as ‘very,’ ‘got,’ ‘ongoing,’ and ‘I am pleased to learn’ are banned.” I learned this from the New York Times Sunday edition, July 28th, 2019. I support this part of his memo, even though Mr. Rees-Mogg is a conservative and an ardent Brexit enthusiast. Oh well, nobody’s perfect. Why do some appellate justices write in their opinions, “At the outset we preliminarily note” when they are noting what they are writing at the outset of the opinion? Hope those who do are away in August. Why, throughout my judicial career, when any of my cases were appealed to a higher court, did I wait with controlled apprehension for the case to be decided? Why, when I received the opinion, did I immediately go to the end of the opinion to find out whether I was affirmed or reversed? Why did I stop doing this? Because on one occasion my elation at reading “I would affirm” turned into despair – I was reading the dissent. Why, on the instructions with the prescription medication I received was there this warning: “Do not flush down the toilet or pour down a drain unused or expired drugs unless told to do so”? A bit odd, don’t you think? My nephew was helping me clean up around the house the other day. I came across an old bottle of moldy drugs. Pasted on the bottle was a warning concerning the correct usage with a drawing of a skull and crossbones. I said to my nephew, “Wonder what I should do with this bottle of moldy prescription drugs?” He said, “Flush them down the toilet.” Well, I was told to do so. Why do lawyers on cross-examination often ask a witness “Is it fair to say”? This grammatically questionable and illogical interrogatory was used to excess during the recent Mueller charade, I mean, congressional hearings. “Is it fair?” Really? I once wrote a book review about Oliver Wendell Holmes. Holmes and his clerk had come to a conclusion about how to decide a case. The clerk then asked Holmes a question the clerk wished he had not asked: “Yes, we have a decision, but is it fair?” Holmes threw Black’s Law Dictionary across the table at him. “Don’t talk to me about fairness,” Holmes thundered. Strike “thundered…” too hackneyed; also strike “hackneyed.” Too… hackneyed. How about “Holmes barked”? No… dog imagery out of date. “Shouted”? Yes, simply, “shouted.” That’s what he did; Holmes “shouted.” A quick, fascinating (“fascinating,” another word I despise) digression. Strike “fascinating”; it doesn’t mean diddly. Keep “diddly.” Also keep the semicolon. Some pain-in-the-ass grammarians say the semicolon is on the way out. Not here. But back to my initial digression. I am sure you all know that today Bryan Garner is the editor in chief of Black’s Law Dictionary. His book on Modern English Usage makes us all better writers and thinkers. And what does Bryan Garner have to do with this column or the-286 columns I have written? Not all that much other than make them more readable I hope. “Readable?” But it was Professor Garner who encouraged me to have my columns published. They are now in two volumes. That’s why he wrote the “forward” in each volume. I have dozens more “whys” to write about, but that’s enough for now. Why did I write this column? (A question that has been asked about most of my columns.) It is August, and like many of my readers… I would like to be… away.

CERTAINTY AND SOLACE--SO ELUSIVE

They profoundly influence our lives.  They can be found all over the world.  When not fulfilling their mission, they blend in with the general populace so as to be undetectable.  They are young, old, of different ethnicities, political points of view, personalities and dispositions.  They are fat, lean, gregarious, cranky, loquacious or taciturn, sometimes both.  Their cover is so complete that even among themselves they can rarely detect that a stranger is one of them. 

But when they meet and reveal themselves, there is an immediate unspoken mutual sympathy, an instantaneous bond.  They know the emotions, the trials and tribulations (pardon the cliché, yet there is no better way to say it) each has endured from time to time.  Their nods of understanding, their occasional smiles, reflect the unexpressed satisfaction that comes from carrying out their special mission. 

Is there a name for this cult of individuals who mingle among us and deeply affect our lives?  Yes, I know them well, because I was once one of them.  They are called… trial judges.

         For many years, I taught a course at the “Judges College” for newly appointed and elected trial judges, sponsored by the Center for Judicial Education and Research (CJER): “Who’s Afraid of the Court of Appeal – or – the Awesome Power of the Trial Court.”  Appellate courts are limited in their review of trial court decisions by standards of review and the overriding principle that only prejudicial errors warrant reversal. 

         Judicial education today seems primarily geared to the technical aspect of judging: how does a judge compute prison terms when sentencing criminal defendants?  What are the formulas for dividing property in family law cases?  Of course, these skills are necessary.  But what is lacking is a course or two on the philosophical foundation for our system of justice.  Judges and lawyers should know about judicial philosophers like H.L.A. Hart and Ronald Dworkin.  I required the new judges to read Shakespeare’s Measure for Measure.  By the way, this is required reading for readers of this column.  This background opens insight into our system of justice, but it also gives guidance in deciding the hard case, the one for which there is no ready answer.

         This leads me to a book review I wrote for the California Supreme Court Historical Society’s Newsletter, Spring/Summer 2019, edited by Molly Selvin.  The book is Tough Cases: Judges Tell the Stories of Some of the Hardest Decisions They’ve Ever Made (The New Press 2018), a profoundly moving account of judges revealing their inner most feelings and emotions in tough cases.  Their riveting accounts of trials over which they have presided compels me to reveal what I have long suspected and suppressed for years: trial judges have the hardest and most demanding job in the judiciary.  Would appreciate it if you keep this under your hat.

The existential philosophers wrote that all human beings are “condemned” to make choices.  To not make a choice is paradoxically a choice.  Judges, however, have chosen a profession that demands its members make reasoned choices in deciding which side prevails in litigation.  The compelling chapters in Tough Cases reveal what many in the legal profession know but seldom articulate – judges are students who must make decisions.  They rely on the law written in statutes and cases and the arguments of counsel urging the interpretation and application of the law to the facts in the case at hand.  And let’s add intuition and commonsense to the mix.

In Tough Cases, judges share their innermost feelings, their fears and doubts about how to rule.  They reveal their emotions about the effect their decisions will have on litigants and the public.  One thing they have learned: certainty and often solace can be elusive.

Judge George Greer in Florida explains how he arrived at his agonizing decision to terminate life support in the famous Terri Schiavo case.  He weighs the omnipresent emotional conflicts, the opposing pleas of Terri’s parents, and her husband, the evidence of her medical condition, application of the law, and what Terri would have wanted.  How can any one human being make this judgment in light of so many competing points of view?  And in the background, there are pleas of religious and political leaders from all over the world and the cacophony of the press.  Solomon would understand.  Judge Greer received threats and was called a terrorist and murderer by a few members of Congress.  We all know how he ruled, but in so doing he raised a significant point: “As much as you read, and as well as you listen, and as hard as you think about a case, for a good judge there is always doubt.”

Judge Greer tells us he is a “Southern Baptist at heart,” even though the pastor of his church told him to leave the church after his decision.  Whatever his personal religious and philosophical beliefs, Judge Greer was committed to one certainty – the issue in the Schiavo case “was not a religious question; it was a legal question.”  Judge Greer is the epitome of Socrates’ ideal judge.  He did his job. 

Recently appointed Los Angeles Superior Court Judge Michelle M. Ahnn tells the compelling story of her transition from public defender to the bench.  During her first year, seemingly routine matters were as difficult as deciding guilt or innocence, like whom to release on bail?  Many of us grappled with that in the trial court.  Judge Ahnn asks herself whether a female defendant accused of domestic abuse is less of a flight risk than a similarly charged male defendant.  She worries about unconscious biases.  Good for her.  She struck a responsive chord with me when she reveals that making decisions each day compelled her to avoid restaurants with large menus requiring yet more decisions.  Now that her first year has passed, Judge Ahnn makes decisions more easily.  But I know how she feels.  I have been a judge for 45 years and still have trouble deciding which socks to wear each morning. 

Judge Gregory E. Mize served as a superior court judge of the District Court of Columbia.  He presided over a dependency case involving a mother who he concluded suffered from Munchausen Syndrome by Proxy.  Because the mother’s illness placed her minor daughter in danger, Judge Mize awarded custody to the father, and allowed monitored visits with the mother and daughter.  The daughter fared well with therapy, but the mother did not: her illness progressed and a few years later her body was found washed ashore in the Chesapeake Bay.

Years later Judge Mize and the now-grown daughter met.  She became a dental hygienist, has many friends, and lives a happy and productive life.  Many judges have decided heart-wrenching dependency cases and moved on to the next case.  Judge Mize points out he has made thousands of decisions in tens of thousands of cases, yet this case still haunts him.  It prompts him and judges everywhere like him to think about questions that trouble many of us, “questions about our human condition and the limits of the judicial office.”

Remember “Scooter” Libby?  He was an assistant to President George W. Bush and at the same time chief of staff and assistant for national security affairs for Vice President Cheney.  There were rumors and allegations concerning whether Iraq sought to purchase uranium from Niger.  If true, they would support President Bush’s desire to pursue a war against Saddam Hussein.  A former ambassador, Joseph Wilson, was sent to Niger to investigate the truth of the allegations concerning the alleged transaction in Niger.  He reported that the allegations were false.  Shortly thereafter the identity of Wilson’s wife, Valerie Plame Wilson, was revealed to be a CIA employee with a covert position.  Was this leak revenge for embarrassing the president for his contention that Saddam Hussein had weapons of mass destruction?  Following another investigation, Libby was charged with obstruction of justice for lying to the FBI and a grand jury about his knowledge of Valerie Wilson’s CIA employment. 

Judge Reggie B. Walton was a U.S. district judge for the District of Columbia when he was randomly assigned the case.  Judge Walton’s account of the trial grabs the reader by the throat and doesn’t let go.  He points out that the facts of a seemingly routine case can be challenging.  This happens when the facts have political implications, the public is “polarized,” and the accused has generated notoriety.  Add to that, controversial expert testimony, a defendant who does not testify, and motions implicating the federal Classified Information Procedures Act that protects unnecessary disclosure of classified information.  After the jury convicted Libby of some of the charges, how does Judge Walton arrive at the appropriate sentence?  Should letters from Henry Kissinger, Donald Rumsfeld, and John Bolton, to name a few well-known figures, matter?  Despite the political pressures, Judge Walton did what was required of him when he took the oath of office.  He assured that Libby received a fair trial and sentenced him accordingly.  President Bush commuted the prison sentence.  Last year President Trump pardoned Libby.  But that is all beside the point.

In a chapter titled “A Quiet Grief,” Judge Lizbeth Gonzales recalls a case when she sat in the New York City Housing Court.  A father lived with his autistic son in an apartment.  They both appeared in court for the hearing in which the father complained about outstanding repairs not made to his apartment.  The son’s odd behavior in the courtroom prompted Judge Gonzales to call in other agencies to determine if the boy was living in a safe environment.  Those agencies determined the boy was safe.  Years later when Judge Gonzales was sitting in the City Civil Court, she read in the newspaper that the father had slashed the son’s throat and left him to die in the bathtub.  Over the years there had been hearings in family court concerning whether the father should have custody of the son. 

Judge Gonzales shares with us her sorrow and regret over what later happened to the son.  She points out that when the case first came to her, her jurisdiction was limited to rent and housing repairs.  She recognizes that investigators and social workers are bound by protocols and legal constraints.  She agonizes that she could not have done more.  She points out what we all know, judges decide motions, make rulings, adjudicate trials, and do their best to ensure that justice is done.  But they do not have limitless power.  She still wonders if she could have done more to save the son.  And she reveals that “like litigants, and lawyers, we too suffer when things go wrong.”  Judge Gonzales still grieves for the son.  That is why people like her belong on the bench.

The title of a chapter by retired Washington State Superior Court Judge Robert H. Alsdorf lets readers know they are in for a frank discussion about a legitimate concern that judges constantly face, “Can an Elected Judge Overrule Nearly a Million Voters and Survive?”  It reminds me of the apt remark of the late Justice Otto Kaus concerning the political consequences of some judicial decisions: “It is like taking a bath with a crocodile in the tub.”  The end result, however, is the same for all judges… to decide as they must without regard to political consequences.

It is difficult to imagine the convoluted intricacies of the world-famous Elian Gonzalez case. Elian and his mother fled Cuba in a boat that capsized off the shore of Florida.  The mother drowned but Elian was saved.  At the time Judge Jennifer D. Bailey was a family law judge. The case which began as a custody matter before another judge wound up in Judge Bailey’s court when the original judge and others had to be recused.  In what on the surface would be a simple case became complicated by federal law, immigration agencies, and massive public, media and political pressure.  Add to that letters from prominent political leaders, most of whom had not the slightest idea of what the case was about, but demanded the result they wanted.  And there were thousands of people protesting.  Judge Bailey did what was required of her.  She decided the case according to what the law required.  Federal orders to return Elian to his father controlled.  She lost and gained some friends over her decision.  But she concludes by modestly refusing to take praise for resisting political pressure because that “is what judges are supposed to do.” 

Remember at the beginning of this review I wrote that trial judges have the most difficult job in the judiciary?  I also facetiously suggested you keep it under your hat.  Just in case anyone took me seriously, let us publicly praise trial judges and acknowledge their significant contribution.  The engrossing narratives in Tough Cases remind all of us: “always seek and speak the truth.”

INSIGHTFUL LOOK AT STATE CONSTITUTIONAL LAW

A few months ago, my colleague Justice Yegan and I gave a talk at a CJER institute for appellate research attorneys.  We discussed our opinions about opinion writing.  Not easy to present without being opinionated.  Of course, the justices for whom the research attorneys work have the final word (pardon the expression).  Therefore the success with which we impressed or depressed the audience is difficult to assess.  I leave to the readers of appellate opinions the judgment (again pardon the expression) about how successful we were in subverting from within.

Now a well-earned plug.  These institutes and programs designed by CJER staff, judges, and justices, and those of CJA, are significant factors contributing to California’s premier judiciary.  Justice Yegan and I attended one of the valuable programs at the institute.  It featured a talk by Federal Judge Jeffrey Sutton who sits on the Sixth Circuit Federal Court of Appeals.  The subject was a book he recently wrote, “51 Imperfect Solutions: States and the Making of American Constitutional Law.”  Oxford University Press, 2018. 

Judge Sutton is an engaging speaker, warm, self-effacing, and down to earth.  He clerked for Supreme Court Justices Powell and Scalia.  He is an expert on state constitutional law and has written and lectured extensively about this and other subjects at Harvard and other law schools.  I found it interesting that at his senate confirmation hearing in 2003, he was confirmed by a vote of 52 to 41.  Perhaps the more liberal senators anticipated conservative rulings.  They were partially wrong and partially right.  In Thomas More Law Ctr. v. Obama (6^th Cir. 2011) 651 F.3d 529, he ruled in favor of the Affordable Health Care Act.  But in Obergefell v. Hodges (2015) 135 S.Ct. 2584, the Supreme Court reversed his majority opinion upholding legislation to ban same-sex marriages.

Judge Sutton spoke highly of our own state Supreme Court Justice Goodwin Liu who wrote in the Yale Law Journal 2019 an engrossing review of Sutton’s book.  I knew of Liu’s interest in the subject.  In 2017 he delivered the William J. Brennan Lecture on state courts and social justice at N.Y.U. School of Law.  Justice Liu’s lecture can be found in the New York University Law Review, Vol. 92, Nov. 2017, No. 5. 

Many judges bristle when labeled liberal or conservative, me included.  The opinions we write are the product of our best efforts to explain our reason for a decision that we think comports with the law.  We leave it up to commentators and others to characterize our opinions as they perceive them.  Yet, with apologies to Judge Sutton and Justice Liu, I was at first surprised by their mutual interest in the value of state constitutional law.  But in the abstract of his article, Liu praises Sutton for inviting us “to understand state constitutionalism not solely or primarily as a liberal ratchet, but instead as a structural feature of our governmental system that modulates the timing, process, and substance of individual rights enforcement.”

However Judge Sutton may have decided certain cases, Justice Liu points out that “Sutton’s account of state constitutionalism is neither liberal nor conservative.”  “Judge Sutton treats state constitutional debate in a diverse democracy and mitigating the risks of winner-take-all decision-making by the U.S. Supreme Court.” 

This calls to mind an article a few months ago in the Los Angeles Times by Jonathan Turley, a constitutional law professor at George Washington University.  The article “Don’t Pack the Supreme Court, Unpack It” argues in favor of an expansion of the U.S. Supreme Court to 19 members.  Turley’s scheme involves, among other things, limiting a president’s appointment to the high court until the 19 number is achieved.  Turley’s legitimate concern is that under the present system a single “swing vote” decides a case that may have a profound and lasting effect on our nation.  That one crucial vote for a particular case makes our high court a “court of one.”  I agree.  No single judge should have that power.  You can quote me on that. 

While I am not holding my breath that Professor Turley’s thesis will come to fruition in the immediate future, Justice Liu’s illuminating analysis of Judge Sutton’s thesis helps alleviate some of my concerns about an undue concentration of judicial power.

I hope to discuss in future columns Judge Sutton’s and Justice Liu’s analysis of state constitutional law.  But what I particularly commend for your attention is Liu’s discussion in part III of his piece in the Yale Law Journal, “State Courts and School Segregation.”  Liu discusses a recurring theme in federal constitutional law that the states through their legislatures, governors, and courts are also the policy villains in segregation cases.  Liu illustrates that this is not always the case.

Justice Liu then offers an insightful discussion concerning what Judge Sutton might have said had his book included a narrative on school segregation.  Liu gives examples of a “significant body of state decisions rejecting the legality of segregation when the Supreme Court decided Plessy v. Ferguson in 1896.”  Sutton’s admiration for Liu’s incisive analysis indicates he concurs.

Justice Liu tells us the core of Sutton’s book: “[T]he richness of judicial federalism is most evident when state and federal courts are engaging in a single discourse, interpreting similar texts or principles in their respective constitutions within a common historical tradition or common framework of constitutional reasoning.”  This approach gives all courts a richer storehouse from which to draw in deciding constitutional questions.

Nevertheless, however a court arrives at a decision, and whatever series of prior decisions and mores influence that decision, we seldom achieve a comfortable degree of certainty about how a court will rule.

I cannot resist the temptation to speculate how the redoubtable Judge Posner would look upon the thesis advanced by Judge Sutton and Justice Liu.  In an interview with Adam Liptak in the New York Times on his retirement in 2017, Posner seemed to have repudiated his earlier emphasis on social utility and economics as principles of his jurisprudence in favor of a more liberal, free-wheeling “pragmatic” jurisprudence.

Judge Posner stated that over the years his views changed, and in deciding cases he came to forget about the law and instead asked what is a sensible resolution of the dispute.  If there is a legal obstacle in the way of a sensible resolution, Posner argues it is often easy to avoid. 

This view of the law drives my colleague Justice Perren nuts.  But I think Judge Posner’s current hypothesis is not as radical as it seems.  In fact, judges may unconsciously decide difficult cases in this fashion.  They all must write a coherent opinion in which they make a rational and plausible argument to support their point of view.  Despite his outspoken views, Posner is not “lawless.”  And I think Posner would applaud Judge Sutton and Justice Liu.  Their approach to constitutional issues gives Posner and all judges more tools to craft “a sensible resolution.”  Justice Perren and I briefly discuss Judge Posner’s approach in an interview I conducted about him in an oral history of Court of Appeal justices.  Soon to be seen on YouTube.