To be educated or not to be educated, that is the question

The Daily Journal is a legal periodical. Right? Any reader who disagrees, I advise not to read the remainder of this column. It is not surprising that numerous articles and columns in the D.J. are about recent Supreme Court, lower appellate, trial and federal court cases. The lawyers who argued those cases sought to achieve a satisfactory result for their clients. And the lawyers who represented the clients who prevailed (a better characterization than "won") hoped the clients were satisfied. (Brief aside for columnist's sudden recall from private practice decades ago: also hoped the clients paid.) Satisfaction all the way around is the best kind.

Oh, you want to know why I prefer "prevail" over "win"? Trials are not sporting events. That the press, entertainment industry, or some clients characterize a "good" result as a win does not mean we in the legal profession should. The form and manner in which adversaries contest cases may bear a superficial similarity to opponents squaring off in a sporting match. But such a shallow comparison ends there. Whatever the result in a particular case, I like to think that when the judiciary is independent, justice wins over injustice in most, if not all, cases.

But what about the precedential value of a case? The holding helps lawyers advise their clients about what is likely to happen if the client pursues a certain course of action. But to cover themselves, lawyers know there is no certainty in life or the law. The stock answer is: "It all depends." And why is that so? Because different facts may or may not fall within the holding of a particular case. But many writers in this and other publications often express their perplexity in determining what is the holding of a particular case. And that is cause for concern. And can you believe? Even some of my opinions have been subject to that inquiry.

There are insightful articles that appear in this and other journals concerning valuable techniques for writing coherent appellate briefs. Myron Moskowitz comes to mind. But I do not recall articles in the Daily Journal concerning tips on writing appellate opinions, even by anonymous writers. I won't ask, "wonder why?"

By now it should be obvious I am leading up to something. And this, in itself, may be grounds for criticizing this and other columns I have written. Why lead up to a subject? Begin with it -- a good rule for an appellate opinion. But my test here is: If a reader takes the time to read the first paragraph, does she or he (or "do they" -- an accepted deviation from proper grammatical usage) want to move on to the second, and so forth? If so, I reject the criticism. Now I forgot... oh, yes, what I was leading up to.

I will save additional thoughts about opinion writing for another column despite the risk in doing so; you can't be friends with everyone. To some extent I believe that problematic holdings in complex or hard cases are the result of something beyond or in addition to problematic writing.

Ross Douthat's column in The New York Times (Jan. 11, 2020) with the foreboding title "The Academic Apocalypse" caught my attention. I did not need Douthat to tell me the bad news from an article "Endgame" in The Chronicle of Higher Education. Douthat quotes the opening text, "The academic study of literature is no longer on the verge of field collapse. It's in the midst of it." I do not agree with Douthat on many political issues, but I do subscribe to his agreement with Professors G. Gabrielle Starr and Kevin Dettmar of Pomona University that the humanities "teach disciplinary procedures and habits of mind ... [from which] we model a style of engagement of critical thought...." What has been taught and learned in the past is worth preserving and gives us tools for critical thought and expression. Neglected artists and thinkers from the past and from other cultures also should be embraced, but not studied exclusively as a replacement for the entire canon of what was written and thought in the past.

To ignore works of the past because of the lifestyle or views of past thinkers is short sighted. Better to consider those ideas of the past that teach and enrich today. I could not bring myself to write "throwing the baby out with the bath water" or "separate the wheat from the chaff." Hey, I just did. These bromides are no less true because they have been repeated... and repeated.

I was inspired by Professor Herbert Morris, a philosopher, past dean of the humanities at UCLA, and a law professor at the UCLA School of Law, to teach a course for many years at our Judges College, along with retired professor and well-known appellate lawyer Robert Gerstein. Our course focused on ways judges might decide hard cases for those in which there were no easy answers. To help students arrive at an approach to this task, they read selections from legal philosophy and literature. This included Shakespeare's "Measure for Measure," a multi-layered play that provides invaluable insights into our justice system today. Yes, a broad-based knowledge of the humanities makes for a more critical thinker who can articulate and write clearly. Many judges who took the course still tell me how it enriched them in ways that provided valuable insights into articulating the reason for their judicial decisions in addition to enriching their lives.

As David Brooks pointed out in a column about education in Scandinavia (The New York Times, Feb. 14, 2020), our system of education now emphasizes "the transmission of specialized skill sets." This is certainly an important component of judicial education. Learning the ever-changing rules of sentencing in criminal cases, navigating the complexities of class actions, and allocating property in family law cases are vital. So is being aware of bias and understanding norms of behavior in our multicultural society. I appreciate there are constraints on a judge's time and energy. But there is more to being a good judge than mastering technical proficiency. There is more than doing and thinking only about how best to do the doing, more than learning the practical to accomplish the task. To be educated only in one's profession is an impoverished education.

I believe coherent holdings can be achieved with a broader understanding and appreciation of cultures, literature and the arts, today and from the past. It leads to clarity of vision and clarity of style, and a little help from the "Oxford Modern English Grammar" and "Strunk and White" would not hurt. 