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300 years ago

By Arthur Gilbert Ben Armistead | Nov. 2, 2020

Law Practice

Nov. 2, 2020

300 years ago

Arthur Gilbert and I have some things in common: we both have two first names — only mine, Gilbert Arthur, sounds literary. And as befitting my name, I offer a few comments about the columnist who hereafter I shall refer to as “Gilbert.” Gilbert apparently thinks his 300th column is a big deal. I repeat — it is not.

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

Introduction by Gilbert Arthur, a doppelganger

Dear Reader,

You might think this introduction is a cute trick. It is partially; omit "cute." I am not the columnist Arthur Gilbert. I am Gilbert Arthur. I have been enlisted to write an introduction to Arthur Gilbert's 300th column, as if that is something special. It is not. It is just another column.

Arthur Gilbert and I have some things in common: we both have two first names -- only mine, Gilbert Arthur, sounds literary. And as befitting my name, I offer a few comments about the columnist who hereafter I shall refer to as "Gilbert." Gilbert apparently thinks his 300th column is a big deal. I repeat -- it is not.

If "300" is so important, why doesn't Gilbert write about what happened 300 years ago? I am sure it crossed his mind. 300 years ago, the typewriter was patented. If Gilbert had been alive 300 years ago, we still would have been stuck with his columns.

While we are on the subject of 300, how about what happened 3,000 years ago? Camels were domesticated in Egypt. People somehow first began building Stonehenge and hieroglyphic writing began, an apt description of Gilbert's columns.

In 1988 the Daily Journal enlisted Gilbert to write an article about what he considered, and still does, an odious practice then in common use by the California Supreme Court known as "depublication." Now there's a concept that might be useful if applied to Gilbert's columns.

Gilbert's unusual article, and the riots that followed, prompted a Daily Journal editor, apparently having a bad day, to suggest (oh dear) that Gilbert write a column for the Daily Journal. What was he thinking? The Gilbert columns have gone on year after year. To what end? He skips from one subject to another and in the labyrinth of his mind (a euphemism) he finds connections between items, events, and topics that to normal people have no relationship whatsoever. To use a common, vulgar expression, "go figure."

Think what it would be like if Gilbert did not have his judicial assistant Bonnie Edwards saving him and us from disaster during her noon-hour proof reading... and spouse Barbara warning, "you can't say that." Thanks And let's add Daily Journal Legal Editor Ben Armistead who steels himself when Gilbert's monthly drafts arrive. And a badge of courage to Editor David Houston.

On this and other prosaic anniversaries, Gilbert contrives to republish his first column that ironically is about the concept of depublishing, a notion I have suggested could be applied to all 300 of his columns. Chalk it up to laziness, one less column to write.

I do not apologize for this frank assessment. If Gilbert berates me, he berates himself, a practice he has refined to an art (pardon the expression) most of his life. We have engaged in this contentious exchange around the time he reached his fourth, maybe fifth birthday. So here once again is the column that started it all.

It Never Happened

The Los Angeles Daily Journal

Thursday, June 9th, 1988

Arthur Gilbert

Most people don't know what Court of Appeal justices do, and that includes many trial judges. A Court of Appeal justice writes opinions, "grinds them out" would be a better way of saying it. Henry Ford would approve. The opinions bump along the assembly line and then chug down the road to oblivion. Along the way they are used or misused by attorneys or judges, who sometimes read them.

But deep within the heart of every appellate justice there lies the seed of an occasional masterpiece, a gem that would make Benjamin Cardozo turn green with envy. It starts with a case that fortuitously comes your way. Something special occurs during this random encounter. You begin to feel ideas growing and developing in your brain.

The Unseemly and Grotesque Stage

During an appropriate period of gestation, the ideas coalesce into a concept. When the concept fights and claws its way out of your brain and plops in a heap on the page, you know you are ready to write the first draft of the opinion. When you're done, that draft is wiggling with life but not ready for public consumption. It is unseemly and grotesque, like the mutant baby in the cult film classic "Eraserhead."

But it's your baby, and you nurture it and shape it, draft after painstaking draft. And then you know, as if by instinct, that the opinion is ready. It shimmers with clarity and reason. Magnanimously, you acknowledge that the brief on the winning side was persuasive, but the opinion has you signature - figuratively and literally. The opinion reflects your style, your panache, your essence.

Shortly after the publication of your chef-d'oeuvre, you happen to attend a cocktail party given by the local bar association. You try to avoid an attorney known for his unctuous fawning. But when he starts praising your new opinion, you find his conversation engaging and stimulating. You tell him in a modest, self-effacing tone that you hope the opinion will be useful. You think it might be unseemly to tell him that you know the opinion illuminates the law, gives it meaning and purpose, that it persuades and sparkles with reason and insight.

I have experienced this. But it's hard to talk about because it never happened. No, I don't mean I imagined it. I don't mean I'm crazy and hallucinating. It's much more than that. I mean the state Supreme Court depublished it. Someone up there simply pulled the switch on an opinion that had just begun to bask in the light of recognition.

The ostensible reason for this ignominious termination is that the opinion reached the right result, but for the wrong reason. Maybe so, but the recent use of depublication on such a wide, unprecedented scale means that there are a whole group of justices writing poorly reasoned opinions these days. I suppose the depublication rule helps hold back the flood of cases inundating the Supreme Court, but it also keeps ideas locked in the closet.

No Useful Purpose

Whatever the reason for the rule, it serves no useful purpose. Why hide the reasoning of an opinion, whether good or bad, from the rest of the world? If the Supreme Court does not care for an opinion, it can decertify it. The opinion may lack precedential value, but at least it exists as an object of either enlightenment or of ridicule. Another interpretation of the law is at least accessible to scholars, lawyers or collectors of the bizarre and occult.

Decertifying instead of depublishing opinions will not increase the Supreme Court's caseload. It will, however, permit the expression of all ideas and will serve an important educational function for the bar and the public. And, who knows, the spurned opinion just might become the law in the next millennium.

I'm not holding my breath that the rule will be changed in the near future. If it does not change soon, one of my colleagues suggested that we publish all the depublished opinions. That's a brilliant idea. I just may start an underground publishing firm that will publish only depublished opinions. I'll call the company East's Oxymoron Publishing Co. - "Opinions That Get You in Lots of Trouble If You Cite Them."

Better yet, maybe we can change the rule so that justices on the Court of Appeal rather than the Supreme Court will have the last word on whether an opinion is published or depublished. I can just imagine what would happen with such a rule. Assume I have decided not to publish an opinion, but the Supreme Court wants it published.

"Oh please, publish this opinion," the Supreme Court asks me.

"No," I answer. "I don't think it really merits publication."

"But it's so good, you have crystallized your ideas into a succinct, readable treatise on this complex issue of law. There is a desperate need for your opinion. Its publication will be a significant contribution to the people of this state and the legal profession."

"Well...I'll think about it." 

#360215

Ben Armistead

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