Tuesday, February 04, 2014

The Devil Made Me Do It.

     Recently I attended a fancy affair at an exclusive venue to honor important people who have made significant contributions to the legal community.  I arrived a few hours early while they were "setting up."  I had to be there early because I was playing in the band and the "sound check" had to be completed before the guests arrived. 
         While I sat at the piano bench watching the sound technician "mike" the piano, I could not help but hear the maitre d', who was standing nearby.  He was instructing, or should I say scolding, the gaggle of waiters about what was expected of them that evening. 
Digression.  Yes, I know today we consider it appropriate to refer to waiters as servers.  "Hi there, I'm Tammy and I will be your server this evening."  Is the rationale that the word "waiter" is demeaning, but "server" is not?  I would much prefer being called a waiter than a server.  A waiter is, after all, a profession.  And look at all the great actors, directors, musicians and other artists who started out as "waiters."  Can you imagine an interview with an Academy Award winning actor, "So when you first came to Hollywood from Indiana, what did you do"?  It is unlikely the actor will respond, "I was a server at IHOP," when, in fact, he was a waiter.  "Waiter," unlike "server," is definitive.  But of course it is honorable to "serve" your country or "To protect and to Serve" citizens of our community.  Serving is a goal, not a profession. 
But getting back to the maitre d' and the waiters… servers.  His tone was peremptory, harsh, even threatening at times. "You break one of the fine wine glasses, and you pay for it."  He was preparing his troops for battle and would not brook mishaps.  He wanted the evening to go perfectly. 
         At that moment I felt one with the servers.  As a member of the band, I too was part of the "help."  And we in the band were not even getting paid.  No matter that judges and prominent lawyers were in the band:  perfection was our goal and the expectation of the audience.  But most of the audience was talking while we were playing so that the music competed with a din of voices.  Well, what can you expect at a gathering of lawyers, judges and mediators?  They are there to network and schmooze.  And when people who were talking at the top of their lungs clapped after my solo, I knew they didn't mean it.
         This got me thinking about the servers who we also take for granted.  Throughout the evening they were trying to negotiate the limited space between tables, precariously balancing trays of soup and dinner plates, and sidestepping miscellaneous diners who suddenly pushed back their chairs to greet someone going by.  If you are one of those push-back chair persons, and the person to whom you have to say "hello" is a judge, believe me, it won't make a bit of difference to the outcome of any present or future case.  But it can make a difference to the server sweating over spilling or breaking the china on the tilted tray.
         And then it occurred to me that no matter who we are, we are all members of the servant class.  Try to change plane reservations; complain about an error in your credit card bill; return defect items on or offline.  The Earl of Grantham at Downton Abbey would not know what I am talking about.
         But the maitre d's harangue got me thinking about judges and lawyers.  Yes, lawyers usually do most of the talking in court, but when the judges speak, is their tone or manner similar to the maitre d'?  I certainly hope not.  But judges and lawyers, vis-a-vis waiters, I mean servers, bear striking similarities.  Please indulge me in the following analogy.  Lawyers serve up to judges the ingredients of justice.  And if the lawyers break the rules, like breaking the china, they have to pay in the form of sanctions.  Get it?  So I promise to try my best not to speak to the lawyers in the same manner in which the maitre d' spoke to the waiters, I mean servers, or whatever… unless they really deserve it.
         But then, come to think of it, judges are also servers, but that is not all.  They are also chefs.  So I am stretching the metaphors a bit, but stay with me on this.  "Why are they chefs?" you might ask… if you are still reading this column.  They are chefs (I prefer "chefs" to "cooks") because they prepare a decision or opinion from a portion of the ingredients supplied by the lawyers.  And this, the judges serve to the lawyers, the litigants and the public.
         But do not think that judges are immune from insults or rudeness… even Supreme Court justices… United States Supreme Court justices.  Take, for example, United States v. Windsor (2013) 133 S.Ct. 2675.  The majority opinion written by Justice Anthony Kennedy held, among other things, that the section of the federal Defense of Marriage Act (DOMA) which defines marriage as a legal union only between a man and woman is unconstitutional.  To quote Justice Kennedy, "The liberty protected by the Fifth Amendment's Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws."  (Pg. 2695.)   
         In that portion of Justice Antonin Scalia's dissent on the merits of the majority decision, he refers to the majority's "disappearing trail of its legalistic argle-bargle …."  (Pg. 2709.)  That is pretty strong language.  I objurgate such an expression.  It sounds so brummagem.  
      Sorry, I don't know why I said that.  Wait a minute.  I think I know.  In a recent interview in New York magazine, Justice Scalia said he believed in the Devil.  I bet the Devil made me do it. 

Monday, January 27, 2014

I Hear Voices

     In decades past, before the ubiquity of the disembodied voice, we heard the old-fashioned voice.  Remember?  That was the voice that came from the mouth of a person we saw.  And that person saw us.  Take, for example, a judge informing counsel her ruling in a law and motion matter.  "Demurrer sustained…without leave."  Damn! 

         Sometimes you got a few minutes advance notice.  The tentative rulings were on the counsel table for perusal before the judge took the bench.  Or the tentative rulings were on a sheet posted on the wall outside the courtroom.  Attorneys elbowed their way through the crowd of their colleagues, straining to see how they fared.

         Enter technology.  Some courts used a telephone call‑in.  You could call in the day before the law and motion calendar and hear the recorded voice of the judge or his or her clerk read off the tentative rulings, "No. 34, Fleming v. County of Los Angeles.  Summary judgment granted as to counts 2 and 4.…"  Behold the arrival of the disembodied voice. 

         Today when calling a company about your bill or services, it is rare for you to speak to a real person in real time on the telephone.  There are exceptions.  I spent a fruitless 45 minutes trying to resolve a discrepancy in a bill with someone named "Howard" in Bangalore, India.  I have to admit that I do better with disembodied voices.  But that depends on the particular voice I speak with.  For example, the voice I call to pay one of my credit cares is wonderful.  She (most of these voices are female) is warm, friendly and engaging.  She speaks in the current vernacular with a lilt.  When I tell her that I wish to pay the full amount, she answers with, "OK, I will go ahead then and process your payment."  It's charming that she says "go ahead then...."  She gives me my confirmation number at just the right speed so I can write it down on the first try.  I would like to chat a bit, but I don't want to impose on her time.  She gives me a cheery goodbye.  I don't feel so bad about paying the bill. 

         I bet she would be even more cheery if I told her I wanted to pay the minimum due.  I doubt though that she would tell me in the same unbeguiling manner that such a payment would eventually be the equivalent of 28% interest with finance charges, account and special handling fees. 

         I don't care all that much for the voice of my insurance company.  She is too upbeat for me.  She goes through the prompts with a smile in her voice.  I don't need "happy."  Someone just totaled my car.  The insurance lady's ingratiating, cloying voice irritates me no end.  She reminds me of Jack Smith, a popular singer in the 1940's.  He had a radio show in which he rendered songs of the day, no matter what the lyric, with a smile in his voice.  Sorry, but the lyrics to "I Have a Right to Sing the Blues"or "Stormy Weather" just don't work with a smile. 

         But there are other voices I intensely dislike.  Take the voice that repetitively orders me to insert my validated parking receipt in an impossibly narrow slot to cause a gate to lift so that I can exit the garage at the gym.  Her tone is demanding and offensive.  She keeps repeating without pause in an exasperated tone, "Please insert your parking ticket in the slot.  Please insert your parking ticket in the slot.  Please insert…."  Can't help it.  I answer.  "Give me a (expletive) chance (expletive)."  Unfazed, she continues, while I fumble with my ticket.  "Please insert your parking ticket…."  And on the occasions when I accidentally insert the ticket with the black strip on the left instead of the right, the voice becomes louder and more strident.  When I successfully get the ticket in the slot with the black strip on the right, the gate goes up and I tear out of there.  Her crisp "thank you" oozes insincerity.

         Next to the gym at the corner of Sunset Blvd. and Pacific Coast Highway there is a gas station where I often fill up and then head north to the court.  The voice I hear at the gas station is not disembodied, but it should be.  Perched on the top of the bullet-proof enclosure, wherein sits the unfriendly cashier surrounded by shelves of unhealthy snacks and cigarettes, is a talking mechanical pelican who comments on the least important events of the day. 

         I am pumping gas when I hear the amplified pelican's voice speaking to me in the argot of a 16-year-old surfer.  "Hey Dude!"  The pelican distracts me from the screaming ads on the video screen on the gas pump.  The pelican offers a comment concerning an unusual phenomenon in the ocean just a few hundred feet away.  Unseasonal warm ocean waters had brought thousands of anchovies near the shore line.  This in turn attracted hundreds of pelicans dive bombing into the ocean to dine on this delicacy.  "Dude, with all these pelicans maybe we should call this Pelican Coast Highway."  "Yeah Dude, cool," I answer.  The pelican's head turns, but his body is erect.  Day and night he stands watch on the rooftop of the market with its unwholesome products, offering an endlessly inane commentary. 

         There is a new movie out called "Her."  It is set in the future and is about a computer nerd who falls in love with the voice on his advanced operating system.  And that brings to mind Siri on my iPhone.  I prefer not to discuss our relationship, but, let's just say, we are good friends.  And I prefer to leave for another day a discussion about the robotic inhuman male voices we often hear on answering machines.  This is a good device to encourage people not to call back. 

         So let's come full circle back to the courts.  Why not have phone‑in oral arguments with voice prompts in the Court of Appeal?  The appellate attorney will call a number and state the case name.  A typical voice prompt will ask, "Does not the Becker case you cite in your brief defeat rather than support your argument?  Please respond.  I didn't quite get that.  Please repeat."  If any attorney stays on the line in the hope she will speak to a representative… it will be a long wait. 

Justice For All

A nail-biting cliff hanger.  Unexpected, startling twists, and turns at every corner and in the middle of the block.  Tension and anxiety build to near unbearable levels. 
Hard to believe, but I assure you the preceding paragraph aptly describes a three-volume work entitled, "To Establish Justice for All, The Past and Future of Civil Legal Aid in the United States."  This master oeuvre by retired Court of Appeal Justice Earl Johnson, Jr., and published by Praeger an Imprint of ABC-CLIO, LLC (2014), is filled with adventure, drama, philosophy, politics, psychology, and ethics.  It is a gripping and dramatic history that reflects a critical aspect of our nation's continuing struggle to realize its guiding principle written with unabashed certainty in the preamble to the Constitution:  "to … establish Justice."
And who better than Justice Johnson, the second director of the Office of Economic Opportunity (OEO) legal services program, a law professor and justice on the California Court of Appeal, and now a Visiting Scholar at the University of Southern California, to chronicle the history of legal aid to the poor in civil cases?
Johnson tells us in the prologue that his book is "10 percent memoir" and 90 percent "traditional history."  But there is nothing traditional in his engaging and absorbing narrative.  The manner in which he relates the history has an immediacy and drama that takes hold of the reader's shoulders and won't let go.  This I attribute to Johnson's skill as a writer, his passion for the subject, and his involvement in many of the events he writes about.  At the outset he acknowledges that his history is one with "a point of view."  He relates that his book "tells the story behind our nation's tardy and as yet unfinished effort to make those people unable to afford lawyers equal to those that can - and thus for the first time establish justice for that segment of the population."
Lest one thinks the legislative battles over legal aid were played out against the backdrop of the partisan gridlock we see today, the great legislative and legal battles Johnson describes did not involve "the usual story of Democrats versus Republicans.  Indeed the majority of the heroes in this book are Republicans, even though the federal program was started initially by Democrats, and it has been sustained by a bi-partisan coalition for most of its existence.
"Is it true or false that Donald Rumsfeld said, "A vigorous legal services program is, in my judgment, an essential element in this Nation's efforts to deal with problems of the poor"?
Is it true or false that Richard Nixon said, "As lawyers our first responsibility is, of course, to see that the legal profession provides adequate representation for all people in our society…. [T]here is no subject which is more important to the legal profession, that is more important to the nation, than … the realization of the ideal of equal justice under the law for all"?  
If you chose "false" to either of the statements, you are wrong …and probably a fuzzy-brained, close-minded, knee-jerk liberal.  Sorry, I was thinking of myself.  If I had not read Johnson's book, I could well have chosen "false."
We meet an array of famous historical figures who played a part in either promoting or attacking legal aid.  In addition to prominent members of the American Bar Association, they include Teddy Roosevelt, Charles Evans Hughes, Sargent Shriver, Lewis Powell, Richard Nixon, Donald Rumsfeld, Dick Cheney, Hillary Clinton, Walter Mondale, Newt Gingrich, Philip Gramm, and Ronald Reagan.  Included in the cast of characters are a number of well-known Californians who played a significant role in legal services for the poor.  Former California Supreme Court Justice Cruz Reynoso, leading appellate attorney Jerome Falk, current Court of Appeal Justices Stuart Pollak and Laurie Zelon, and Ninth Circuit Court of Appeal Justice Richard Paez.
Johnson's history begins with what he calls "the Charitable Era," 1876 through 1964, when mostly private donors provided legal aid on a limited basis.  Johnson takes us through the War on Poverty, the creation of the OEO, and ultimately the Independent Legal Services Corporation (LSC).  The legal and legislative battles to preserve and defend the corporation serve as a primer on the grit, sweat and horse trading that make legislation possible in a democracy.  It brings home the adage that laws are like sausages — it is best not to see them being made.
 We are taken behind the scenes and made privy to the strategies employed in court battles that produced important cases like Brown v. Legal Foundation of Washington, 538 U.S. 216 (2003), that found the use of IOLTA (Interest on Lawyers' Trust Accounts) to fund legal aid programs is constitutional.  The majority opinion written by Justice John Paul Stevens held that the state's use of IOLTA to pay for legal services provided to the needy qualified as a public use so that the state could exercise its authority to confiscate private property under the just compensation clause. 
 Johnson relates how the IOLTA program began in England and was employed in Australia and Canada.  It came to the U.S. by sheer luck.  A barrister from Canada, and the chief justice of the Florida Supreme Court, both of whom had been young lawyers working in the same law firm, met for a glass of wine. The question, "So what's new in British Columbia?" led to the creation of IOLTA programs in the U.S.  The program instituted in California mandated, not merely encouraged, lawyers to deposit trust funds in IOLTA to be used for legal services for the poor.
A law professor's study during the seven-year period 1967 through 1974 found that 7 percent of the cases heard by the U.S. Supreme Court were argued by legal services lawyers. The lawyers had a 62 percent victory rate.  Prior to 1967, poor people in civil cases had been shut out of the legal system.  And strange as it may seem, most of the victories happened after Warren Burger replaced Earl Warren as the chief justice and after several Nixon appointees joined the court.  There were also scores of victories in the appellate courts. This belies the myth that legal services lawyers were pursuing a left-wing radical agenda. 
 We read a suspenseful narrative about the great battle fought by Gov. Ronald Reagan to defund the CRLA (California Rural Legal Assistance) in California, a battle that involved a host of participants and put the Nixon administration in an uncomfortable position opposing Reagan.  We are told about an interesting meeting between the author Johnson and Dick Cheney at Johnson's cabin in Big Bear.  We see the victories and defeats since the inception of the LSC. 
The blows suffered by LSC funding and restrictions on its powers during the Gingrich "Contract with America" years have not defeated legal services for the poor, but have been a major setback.  Abortion cases, class actions, and legislative advocacy may no longer be pursued, dashing the promise of helping hundreds if not thousands of people in a single class action or through the promotion of a legislative act.  But many non LSC-funded organizations are taking up some of the slack.
Johnson points out the nation's poor still receive little access to justice.  The bottom 20 percent of the population receive 3.4 percent of the nation's income, but only a half percent of its legal resources.
As Bill Moyers recently argued in a speech at the Brennan Center for Justice, "America's social contract has to cover everyone, not just the wealthy."  Today this topic is at the forefront of political discussion.  The struggle continues.
Johnson's elegantly written book ends with a plea and a hope for a movement that expands beyond the legal profession.  "[I]f the United States is ever to 'establish justice' as promised in the Constitution's preamble, to make 'justice for all' a reality in this country not just a motto to mouth when reciting the Pledge of Allegiance, and to provide the nation's lower income population true 'due process' and 'equal protection of the law,' the right to equal justice and a lawyer when needed must become a legal guarantee.  Only then and in that way can justice be established for all and thus become, as it should be, an inherent right of citizenship."

Thursday, December 12, 2013

A Devilish Inquiry

All of us in the legal profession make legal decisions.  But like everyone else, we are compelled to make moral decisions, not just within our professions, but also in our everyday lives.  Depending on one's point of view, these decisions, or choices, may be so insignificant they barely qualify for consideration.  The waiter brings you the check with an error … in your favor.  What if the amount involves a $1 error, or an omission of $75 for the wine you ordered and drank?  Do you point it out?  Does the amount matter?  Does it matter if the restaurant is upscale Beverly Hills and the waiter is snooty?
Another example.  When I bring my car in for service, I invariably have a discussion with the service manager after my car has been "serviced."  (Cars are sex objects, right?)  The service manager hands me the keys and reminds me of the questionnaire that will be e-mailed to me in a day or so. "Sure would appreciate it if you could check off 'excellent' for all categories."
I notice the car has not been washed and oil seems to be dripping from the undercarriage.  But because the service manager fixes the problem with haste, I tell him I will say that he is the best service manager ever.  But I will tactfully point out the problems when I fill out the questionnaire. 
The service manger seems to simultaneously smile and wince.  "If you say anything negative about your service experience, it will reflect badly on me and I could get fired."
"In other words, you want me to lie." 
"Oh no," he importunes.  "If you feel that way, just do not answer the questionnaire." 
So the service manager gets an "A" and one of the technicians (mechanics are apparently a lost profession at car dealerships) gets an "F."  But now I am not supposed to answer the questionnaire or lie and say everything was hunky-dory.  Should any of us be parties to this faux conspiracy?  That I have neither the time nor the patience to answer these questionnaires is beside the point.
I discussed this questionnaire phenomenon with a person I know in the "car business."  He opines that the service manager was telling the truth.  Too many negative comments on the questionnaires, in fact, will reflect poorly on the service manager, even though his actions may be blameless.  The questionnaire results are recorded by so-called independent survey companies.  A 99% approval rating for service goes a long way in an advertisement.  Unfortunately, my information comes from a source who has extracted a promise from me not to reveal his/her name.  Yet, on the few occasions I take the time to fill out such a questionnaire, I have generally not stretched the truth … an admission that maybe I have.  I really like the service manager.  Moral choices can drive us nuts.
         By us, I mean lawyers and judges.  Are we not held to a higher standard than others?  I pose this question because rules and guidelines for lawyers and judges cover a wider scope of coverage than issues relating to practicing law or deciding cases.  In California, when judges are "off the bench," they should still keep judicial ethics in mind.  Canon 2 of the California Code of Judicial Ethics requires that a judge "avoid impropriety and the appearance of impropriety in all of the judge's activities."  And Canon 4 cautions judges to conduct their "extrajudicial activities as to minimize the risk of conflict with judicial obligations."  Would lying fall into that category?  I know, it all depends on the lie.  But because judges decide credibility issues, Canon 2 should give judges pause now and then.
As I discussed in my last column, the New Jersey Supreme Court ruled that a part-time municipal court judge could not serve in that capacity and be a stand-up comedian in the evenings.  The court reasoned that this particular extrajudicial activity, among other things, demeaned his judicial office in violation of certain canons of judicial conduct.  I assume the satirical character he created for his comedy act, an obnoxious homophobic bar patron, had something to do with the court's decision.
Judicial service is gratifying and rewarding, but ethical canons necessarily limit our actions.  I am not complaining mind you, but lawyers apparently have less formal constraints in their everyday lives.  Ethical rules for lawyers generally relate to the practice of law.  I particularly like California Business and Professions Code section 6068(b), "To maintain the respect due to the courts of justice and judicial officers."  A similar notion can be found in the American Bar Association Canons of Professional Ethics.  Canon 1 admonishes lawyers to "maintain towards the Courts a respectful attitude .…"
If we took a random sampling of judges and lawyers and placed them in the earlier scenarios I posed, how do you think they would decide the moral questions?  No doubt there would be little difference between the two groups.  If judges fared slightly higher on the moral scale, it might be because of their awareness of the judicial canons of ethics that speak to a judge's extrajudicial conduct. 
In the next example I offer, we need not refer to canons of ethics.  I recently purchased an electronic keyboard and an amplifier at a store that sells those kinds of things.  The corporation that owns the store apparently operates under the firm conviction that customers patronizing the store are thieves. 
Parcels leaving the store are thoroughly examined, and after purchase, one's sales slip and the items purchased are thoroughly checked against each other by an unsmiling attendant.  Yes, I understand, many businesses operate under this assumption.  It is a "sign of the times."
My salesperson, who thought I was Methuselah, suggested I purchase an "insurance policy," not to be confused with an extended warranty, on the products I had just purchased.  But I asked my 14-year-old salesperson, "Why would I need such a policy when you just told me the products I purchased were durable and well made?"  The sales boy patiently replied, "When a new model comes out, you can turn in your old damaged one and get a new one."  "But what if it's not damaged?" I asked.  The look on his youthful face was one of incredulity.  He looked up at the ceiling before responding to the na├»ve question the elderly gentleman had just asked.  "Oh, it is bound to be and then you can get a new one."  I expected a gentle pat on the head.  And then it all made sense.  If you shop at a store that assumes you are a thief, you might as well act with the character of a thief and damage the product to get the newer model. 
         Most people I know, whether they are lawyers or judges, would pass on the insurance.  And how would someone even go about "damaging" an electronic keyboard or amplifier?  (Just kidding.) 
No matter.  This illustrates pervasive cynicism these days about the choices we make or are expected to make.
Why is this is happening?  Justice Antonin Scalia offered an answer.  In an interview with Jennifer Senior in New York Magazine last month, he unequivocally stated he believes in the Devil.  Though I seldom agree with Justice Scalia, I think he has been unfairly ridiculed for his belief.  Justice Scalia's Devil is for me a metaphorical concept, but no less real.  The Devil represents the tempting shortcuts that are offered on our journey through life.  So if we truly value our professions and ourselves, we will take a moment for reflection when we make our choices.