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Law Practice

Oct. 5, 2020

A column about columns

Number 299, but who’s really counting?

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

Yes, this is #299. Not bragging. "Numbers" is a word invented by people to count... things. Just as "a rose by any other name is a rose," or Gertrude Stein's rediscovery that "Rose is a rose is a rose is a rose" a number is a number is a number. A single number is insignificant even when it is labelled a "record" because in time there will be a new record. Roger Bannister breaking the four-minute mile comes to mind. For a while it caught our attention. Of course a record number of deaths or tragedies can and we hope prompt us to action. My only point is that a specific number means little when one considers that numbers go on for infinity. So why make a deal about the number of this or subsequent columns? Good question. Or to put it another way, why even bring it up? Another good question. I have no good answer other than to repeat, this is my 299th column.

To continue with the same theme, whether I write my 300th column next month remains to be seen. Could happen or not. This I could have said about by 233rd or any other column before I wrote it. Whatever the number, columns in every sense of the word are here to stay. Columns can be decorative, but they also hold up structures in the mind or the physical world. Columns also hold up second, third, fourth (numbers again) stories in buildings. Columns hold up words in the sense we are speaking about here and tell stories and hold up ideas.

So I am not so presumptuous to make any predictions about a 300th column that has not occurred and remains to be read, or "actualized" if I were a philosopher. Enough about how many columns anyone would write. Whatever the number, some may be worth reading, whoever the columnist and whatever the subject. Notice I wrote "some."

In past columns I have explored the "risks" in expressing opinions that may offend readers who take exception to a word or a phrase they interpret as reflecting bias or insensitivity. I accept that all of us no matter our race or ethnic origin may harbor an unconscious bias that is revealed in conversation or in a column. Nevertheless, I have railed against hyperconscious self-censorship that militates against the open exchange of ideas. I have already written about the word "niggardly" that has nothing to do with race, but would likely offend any decent person unfamiliar with the word. Is it forever banned from usage?

We may all have our share of guilt, but instead of beating ourselves up over it, let's be conscious of it and do something about it. I have noted that some columnists, reflecting the mood of many of us, are so riddled with guilt they write about their character flaws and misdeeds, presumably to show how human they are. I get it. How else could I write 299 columns?

But judges are human... most of them, and they make mistakes just like everyone else. That's why we have Courts of Appeal... oh, yes, and a Supreme Court.

It used to be that certain topics were taboo like bodily functions, a favorite topic of elderly men. I admit to writing a few columns on the topic. Elderly men often talk about their panic in public where there are no public restrooms available. An even more pressing (pardon the expression) concern during the pandemic. This includes judges. I know it's hard to believe. But this is a subject I save for my Saturday morning running buddies. I mean, my walking buddies. We used to run.

Judge Judith Chirlin, now retired, and I gave a talk in Moscow to Russian judges in the early 1990's about American jurisprudence. The Russian judges asked good questions ranging from statutory interpretation to the death penalty. One judge asked a long question with a tone of urgency and passion. When the interpreter finished the translation, I sensed the anticipation and interest as the Russian judges waited for my answer. Rough translation of the question: "Artur, when you have important witness on the stand in the middle of cross-examination, and you have to go bad to the bathroom, what do you do?"

What's the point of all this? If we can talk about bodily functions, we can talk about anything and not allow fleeting concepts of political correctness stifle the free exchange of ideas. Maybe being offended now and then is good idea. Let us hope that doing so will not be as futile as whipping the Hellespont.

My friend Professor Marvin Zuckerman told me that when he was a graduate student in linguistics he learned that trying to fight a usage, and I would add, a habit, was like trying to "whip the Hellespont."

Xerxes, King of Persia, devised a plan to cross the Hellespont to invade Greece. He had his engineers build a few bridges to cross it. A storm destroyed the bridges before the Persians could cross. Xerxes was "cross" in the other sense of the word, and repeatedly whipped the waters, among other things, to punish them.

So, I repeat, let us not allow the open exchange of ideas, no matter how unpopular, be as futile as whipping the Hellespont. 


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