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Judges and Judiciary

Jul. 7, 2020

Pandemic pandemonium, part I

It’s all different. More so than any of us can remember. Lesson we all know, but many have stored in the back of a mental closet, the cliché that now bores through to the core: “take nothing for granted.”

24 gilbert mug

2nd Appellate District, Division 6

Arthur Gilbert

Presiding Justice, 2nd District Court of Appeal, Division 6

UC Berkeley School of Law, 1963

Arthur's previous columns are available on gilbertsubmits.blogspot.com.

UNDER SUBMISSION

It's all different. More so than any of us can remember. Lesson we all know, but many have stored in the back of a mental closet, the cliché that now bores through to the core: "take nothing for granted." Complaints about court delays before March of 2020 seem oddly quaint. Trial court presiding judges are scrambling to figure out how and when to open, and in what manner. Following Supreme Court guidelines, it is still a monumental job managing cases entitled to priority and how and where to decide them. The larger the court, the larger the dilemma. Presiding Judge Kevin Brazile of the Los Angeles County Superior Court, the largest trial court in the country, with some 481 judges, not to mention commissioners, covering a geographical area of close to 5,000 square miles, faces a Herculean task. He is the right person at the right time who always seems to keep his cool. I bet he does at home as well. With me, it may be a different story. My wife and I signed a confidentiality agreement occasioned by my working at home. Nevertheless, I invariably take her side of any argument. Even I find it impossible to live with me.

During the pandemic, the Court of Appeal has an easier time managing its caseload than trial courts. In case anyone forgot, we write opinions. We can do it from laptops and computers at home. Research tools are readily available for us, research attorneys, and our judicial assistants. And as a rule, we conduct oral argument only once or twice a month. We now do it through the marvels of video conferencing via Bluejeans. Can anyone tell me why "cute" monikers are so often used to describe new software technology? Probably to assuage the fears of techno-cowards like... me.

Where were we? Oh, yes, oral argument video conferencing. There are advantages. In an article in the June 2020 edition of the London Financial Times titled, "Pandemic puts remote courtrooms on trial," barristers and judges offered various assessments of the procedure. For barristers, it can save two to three hours in traffic. Thought they were talking about Los Angeles. One barrister who argued her case on the phone from her living room said the experience was much like arguing in court even though her living room did not reflect "the splendor of London's neo-Gothic Royal Courts of Justice." To get in the mood, she wore a business suit and argued from a stand-up desk. She could have worn her pajamas, something I strongly recommend lawyers avoid when arguing via video conferencing -- would be hard for me to stay awake during an uninspiring argument. The barrister learned immediately after arguing her case that she won. She then asked herself whether she might put on a "cup of tea." So English.

But there are disadvantages to video conferencing oral argument. Much harder for the judges to interrupt. I mean, we do have questions. My subtle approach to overcome this problem is simple -- frantically waving my hands in front of the camera to signal the lawyer to stop talking (a euphemism). Lawyers should not be vexed with these interruptions. What better opportunity to know what judges tasked with deciding the outcome of a case think or ask for enlightenment? I suggest that anyone on the video conference be aware that "they" (now permissible) are seen up close. This applies to judges as well as lawyers. Gestures or expressions of distaste do not serve a valuable purpose. I won't be graphic, but... you know what I mean. Of course, gestures we make to those gathered around the telephone concerning proposals or negotiations to another party on the other end of the line are a different story. I speak from experience. Today, however, phone conferences are mostly a relic of the past. But you can avoid embarrassing faux pas gestures in video conferencing because you see yourself on camera just as all other parties see you. Simply display a genial and interested expression no matter the inner range and rancor. Acting coaches are available for those who imagine their integrity an obstacle to such dissimilation.

I recommend appropriate attire... from the waist up. If you are wearing shorts, underwear, or... well, whatever, do not EVER walk away from the camera. Keep that upper profile from only above the waist, better yet, from mid-chest, in view. This applies to judges and lawyers alike. Judges always wear at least a shirt and tie under the robe.

What else? Oh, yes, background. For Zoom meetings, a bookcase in the background is impressive. And, yes, of course, the bookcase should contain books, although an occasional family photo is permissible. Depending upon who you wish to impress, I suggest an eclectic array: Dante's "Inferno," Gibbon's "Rise and Fall," Dworkin's "Law's Empire," Eliot's "Middlemarch," Proust's "A la recherche du temps perdu" (in the original), Piketty's "Capital in the Twenty-First Century"... you get the drift. No one said you had to read them, let alone understand them. Better to stay away from more controversial faire, like "Mein Kampf" or Marquis de Sade's "The Crimes of Love," or Nabokov's "Lolita," which my wife removed from a prominent place on my bookshelf.

My wife Barbara and I regularly watch the "PBS Evening News" with Judy Woodruff. The pandemic requires her and the various news analysts on her show to present their segments from their homes. Ms. Woodruff's bottom bookshelf in her immediate background contains books on the Civil War. And that reminds me to remind you to keep your pets out of the room in which you are video conferencing. News analyst Lisa Desjardins appears to live in a sparsely furnished Washington apartment with a white L-shaped couch in the background. My wife and I recently missed most of her incisive analysis one evening because we were transfixed watching her black and white cat trying to fish out something from between the cushions. Even when the cat is sleeping, he or she captures our attention. Admit we have been accused of being cat, dog, animal "nuts."

So we all must adapt to what is called the "new normal," the repugnant phrase that at its birth was properly termed "abnormal." Within a few months it grew so precipitously that today it is more properly termed the prosaic but horrific "normal." We have learned that nature controls and that when we fly too close to the sun we suffer the same fate as Icarus. In addition, social upheaval compels us to confront unacknowledged biases and prejudices. And as we face some unpleasant truths, we come to realize status and "position" carry at most a flimsy facade of importance. It is what we are and what we do that matters.

To avoid recusals and the perception of bias, judges are cautioned not to publicly voice opinions relating to politics, religion or controversial subjects that could be the subject of lawsuits. Some, whether resolute or reckless, write columns, and on occasion follow the advice to delete a phrase, a sentence, or the whole damned column. But much can be said from judges who support our mission to fairly and dispassionately administer justice.

I applaud our chief justice who recently remarked, "As public servants, judicial officers swear an oath to protect and defend the Constitution. We must continue to remove barriers to access and fairness, to address conscious and unconscious bias -- and, yes, racism. All of us, regardless of gender, race, creed, color, sexual orientation or identity, deserve justice. Our civil and constitutional rights are more than a promise, a pledge, or an oath -- we must enforce these rights equally. Being heard is only the first step to action as we continue to strive to build a fairer, more equal and accessible justice system for all."

And please note that all seven justices of our high court on June 11 issued this statement on equality and inclusion:

"In view of recent events in our communities and through the nation, we are at an inflection point in our history. It is all too clear that the legacy of past injustices inflicted on African Americans persists powerfully and tragically to this day. Each of us has a duty to recognize there is much unfinished and essential work that must be done to make equality and inclusion an everyday reality for all.

"We must, as a society, honestly recognize our unacceptable failings and continue to build on our shared strengths. We must acknowledge that, in addition to overt bigotry, inattention and complacency have allowed tacit toleration of the intolerable. These are burdens particularly borne by African Americans as well as Indigenous Peoples singled out for disparate treatment in the United States Constitution when it was ratified. We have an opportunity, in this moment, to overcome division, accept responsibility for our troubled past, and forge a unified future for all who share devotion to this country and its ideals.

"We state clearly and without equivocation that we condemn racism in all its forms: conscious, unconscious, institutional, structural, historic, and continuing. We say this as persons who believe all members of humanity deserve equal respect and dignity; as citizens committed to building a more perfect Union; and as leaders of an institution whose fundamental mission is to ensure equal justice under the law for every single person.

"In our profession and in our daily lives, we must confront the injustices that have led millions to call for a justice system that works fairly for everyone. Each member of this court, along with the court as a whole, embraces this obligation. As members of the legal profession sworn to uphold our fundamental constitutional values, we will not and must not rest until the promise of equal justice under law is, for all our people, a living truth."

And a final note of caution. In our zeal to fulfill this mission, we must judge with care. An offhand remark, an unconscious slip of the tongue, or an expression that could be perceived as offensive should be met with rational discussion and education. The quickness to condemn with irreversible consequences may reflect a zeal that mirrors what we seek to correct. 

#358421

Ben Armistead

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