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Law Practice,
Judges and Judiciary

Jan. 7, 2019


This is my first column for the year 2019. It picks up some themes from my last column in 2018. You might consider the two columns like bookends.

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


This is my first column for the year 2019. It picks up some themes from my last column in 2018. You might consider the two columns like bookends.

Digression. For a moment I thought the simile "bookends" did not work well. But then I decided it did work because there is a relationship, although tenuous, between the two columns. Hope to get to that relationship before the end of this column. I was led astray by the more obvious example of a column written in January 2018 and one in December 2018. There the relationship would be the beginning and end of the year. So trite.

This digression demonstrates how many of us write, or "craft," if one wants to sound fancy, opinions. I think we should scuttle "craft." People who make things are craftspeople. Shoemakers, furniture makers, designers make products you can feel and use physically. I acknowledge that we writers of opinions have something in common with craftspeople, that special breed who use their particular skills to make products that reflect close attention to detail. But our product is words. "Crafting" an opinion is pretentious, an affectation, and can be a poor comparison to one who makes an elegant cabinet.

I suppose you could argue that writers, like makers of fine furniture who chip away at wood, chip away at sentences and words. There you see another simile that arguably is best left off the page. On the other hand, maybe it's OK. What do you think? I am leaving it in. This is an example of how a writer suffers. The job of writing an opinion, a column, and, for me, even a shopping list, requires much redrafting and self-criticism. After the final draft of an opinion, I am often in doubt concerning whether or not I wrote an opinion that coheres and reaches the "right" result. The "final" draft is often "let it go already."

Years ago, in the early draft of an opinion, I wrote: "Sometimes a defendant's rights fall between the cracks. Here they fell in the Grand Canyon." It took me awhile to realize that if the "rights" fell between the cracks, they would be visible and would not disappear into the chasm. Initially I was thinking of the Grand Canyon as an enormous crack. But the metaphor was confusing. So I changed the sentence to read: "Sometimes a defendant's rights fall in the cracks. Here they fell in the Grand Canyon."

So getting back to bookends, in my December column I wrote about "thanks" -- the genuine and the sham. And I promised to visit my old friends Learned Foote and Miss Ann Thrope. Foote was cranky as usual and chagrined that I devoted so much space to a digression instead of him. I tried to placate him with a few questions devoted to the general theme of my digression. "Should judicial opinions avoid similes and metaphors?" He was angry and said something about ducks, looking, walking and quacking.

So I next called on my old, aged friend Miss Ann Thrope. (Strike "old" as redundant.) But maybe not in this case. No one knows how old Miss Ann is, but there were rumors about her and Chester Arthur. At any rate, I pulled into the driveway of Miss Ann's house in the Hollywood Hills. I felt a little like William Holden in "Sunset Boulevard." Lucky for me, there was no bill collector on my tail, and I didn't wind up face down floating in the swimming pool.

The doorman answered, and ushered...OK... led me into the drawing room. The curtains were drawn, drawn curtains in the drawing room. A small, dimly lit lamp provided just enough light to cast a few shadows. Against a wall one could barely make out an ornate divan on which were bunched satin sheets. "Where is Miss Ann?" I inquired.

"I am here, my boy," a thin, raspy voice answered from the sheets. I could barely make out in the midst of the rumpled satin her tiny wrinkled visage. Note -- I think "visage" works here. I took note that she called me "my boy." This greeting should give the reader an inkling into the multiple decades this dear creature lived.

"You have come to tell me your New Year's resolutions," she stated in a voice that raised, not rose, a decibel above a whisper. I hesitated to contradict her. But I reminded her that ever since I was shouted down while trying to pass a resolution in student government, I do not make resolutions.

Knowing how she tires, I told her I wanted to get her views on recent events of the past year. It was difficult to hear her answers to my questions. But I will do my best to interpret what she said. Her tiny mouth moved imperceptibly in the middle of her visage, I mean, her face that resembled an oversized bleached raisin.

"What do you think about the #MeToo movement?" I asked. Her little raisin face expanded into a smile causing some wrinkles to disappear. I detected what sounded like "good," and then I heard her say... what was it? "tut"? "Tut"? "King Tut"? No, of course not. It was "but." And then something about the accused having... having what? Got it. "Due process." And then something about boorish behavior not amounting to a crime. How long and how severe should the offender be punished or ostracized?

And then I asked her to comment on the manner in which judicial candidates for appointments to the federal courts are now selected. Her face dissolved into a mass of wrinkles. She was too tired to speak. I tried to elicit a response concerning by way of contrast how the judiciary in California is selected. She did not speak, but her face expanded so that more wrinkles disappeared. And when I mentioned the name of our new Supreme Court Justice Josh Groban, her face resembled... I know it sounds strange, a wrinkle-free alabaster raisin.

Happy and let's hope a better New Year.


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