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To doubt or not to doubt

By Arthur Gilbert Ben Armistead | Dec. 4, 2017

Judges and Judiciary,
Appellate Practice

Dec. 4, 2017

To doubt or not to doubt

Perfectly acceptable words can become detestable through overuse and misuse. "Incredibly" and "iconic" vie for first place on my list of abhorrent words. Overuse sucks the lifeblood out of them.


Perfectly acceptable words can become detestable through overuse and misuse. "Incredibly" and "iconic" vie for first place on my list of abhorrent words. Overuse sucks the lifeblood out of them. Why can't somebody just be who she is, for example, without the adverb "incredibly" dressing up and confusing a pejorative or praising adjective? An incredibly talented oboe player may not be all that talented if her talent is not credible.

What also drives me nuts are guests on radio and television interviews who respond to the host's salutation, "Thanks for being here," with the cloying response, "Thanks for having me." On the occasions when an interviewer with poor judgment has actually... (Whoops! Another word I despise.) "Actually"... really? "Actually" is a revolting redundancy. Where were we? Oh, yes, "when an interviewer with poor judgment has..." thanked me for an interview, I respond with the novel, "You're welcome." And, besides, I would never thank anyone for being had.

And we need not dwell on the insufferable "no problem." "Can you change a dollar for me?" How about this for a unique answer from the cashier -- "yes"? Even if I asked would it be a problem to change a dollar, a good response would be "no" if the cashier can and will change a dollar. The cashier does not have to add "problem" to "no." I wonder how the cashier would respond if I asked, "Would it trouble you to change a dollar?" I can barely tolerate "no trouble," but would go crazy if he said "no problem."

Recently I was introduced to a new word I am certain will not be overused. It was discussed in an article sent to me by well-known trial attorney John Blumberg. The article appears in the November 2017 issue of Los Angeles Lawyer. It was written by prominent appellate attorney Marc Poster. For those of you who have not heard of these attorneys, I suppose they are neither well known nor prominent from your limited perspective. To maintain balance and fairness in my column, from time to time I have mentioned attorneys who are neither well known nor prominent. But to avoid controversy, and possibly a spurious lawsuit from unknown attorneys, please strike the adjectives "well known" and "prominent" from the descriptions of the two lawyers mentioned above.

Where were we? Oh, yes, the new word Poster writes about. The word is "dubitante." Like most of you, I didn't know what it meant either. Poster tells us dubitante comes from the Latin word "doubting" and is used in judicial decisions. In my 42 years of judging, I never came upon dubitante, and I admit it scares the hell out of me. I confess to being in a perpetual state of doubt. I have argued that uncertainty pervades the law, but dubitante, if carried to extremes, and we see extremes raging across the world these days, could undermine the entire judicial system. Poster says, "A judge voting dubitante signifies that he or she doubts the decision rendered, but is unwilling to state it is wrong." It might also be called an "indecision."

Dubitante has its place when a judge deciding a case doubts the validity of her decision because it must be based on precedent established by a higher court. But what about Judge Dillard in Nalley v. Langdale, 734 S.E.2d 908, 922 (2012), quoted by Poster. Dillard acknowledges in his concurring opinion that if he were deciding the case alone, his "reasoning and conclusions" could differ from the majority opinion. Huh? But, not to worry, the concurring Dillard assures us that his "colleagues have carefully and seriously studied the case." He defers "to the conclusions they have reached," but then he pulls the carpet from under us with the caveat that his deference is emasculated by his "considerable reservations" about the majority's conclusions.

Wait a second. Last time I checked, we judges are obligated to decide. It is in the job description. Judge Dillard's frank admission is disquieting. Is it possible that on occasion a concurring judge who has vague doubts about concurring in an opinion goes along because of time constraints or laziness? This could all be happening just below the level of consciousness. This approach to jurisprudence reminds me of a New Yorker cartoon from many years ago. The jury foreman is standing and addressing the judge. The caption reads: "Your Honor, we would rather not get involved."

Dubitante can usher in a new judicial philosophy, the school of Doubtful Jurisprudence where opinions are doubtful or simply not rendered because the result is doubtful. The dubitante judicial philosophy could well be influenced by the parting comments of Judge Posner on his retirement.

Posner posits that judges mostly do whatever they want and dress up the result in legal language. In an interview with Adam Liptak in the New York Times, Sept. 11, 2017, Posner said, "I pay very little attention to legal rules, statutes, constitutional provisions. A case is just a dispute. The first thing you do is ask yourself forget about the law what is a sensible resolution of this dispute?" Posner believes that if there is a "Supreme Court precedent or some other legal obstacle [standing] in the way of ruling in favor of that reasonable resolution," a rare occurrence, "they're often easy to get around."

Dubitante is less or more honest, depending on your point of view. It acknowledges that the judge does not know or is not sure what the answer is. Posner's parting philosophy could convince the judge who is unsure of the result to craft an opinion she or he thinks is sensible.

A judge who I never thought would have anything in common with Judge Posner was my friend, Harry Pregerson, who passed away last month. Posner was an exponent of the economics school of jurisprudence. He was a conservative for whom principles of social justice were overshadowed by principles of economics and social utility. But he changed and became more like Judge Pregerson for whom the plight of the poor and disadvantaged was of prime importance. Pregerson was unabashed in expressing his judicial philosophy for which he, like Judge Posner of late, took criticism. It was reported that in his senate confirmation hearings he told the senators, "If I had to follow my conscience or the law, I would follow my conscience."

When I first went into private practice in the Valley, Harry's office was a block or two away from my office. We would exchange greetings in court and share a few war stories. When Harry became a municipal court judge, I appeared before him on a dog bite case. I will save that hilarious story for another column. I appeared before him when he was a superior court judge as well. I can assure you that, even though I prevailed in both cases, it had nothing to do with our friendship.

Harry was sui generis, a gentleman, filled with love and respect for everyone. He made a difference. And here there is no dubitante.


Ben Armistead

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