Time on my hands: The illusion of absolute certainty

UNDER SUBMISSION

Judging and much of practicing law involve forays into the past. Of course we do this in the present and hope that our efforts lead to a predictive glimpse into the future. A typical case, no matter what its complexity, involves a reach into the past. In simple terms, someone or some entity did or did not do something that caused injury to someone else. In the present we look to the law to help us decide whether redress is possible. We also factor in costs and evaluate the likelihood of success. Is the pursuit worth the effort? If it is, will we gain a worthwhile benefit in the future? And this calls into question whether our remembrance of the past is accurate (take note Mr. Proust). How much of the past do we imagine or assume?

Notice all the questions in the preceding paragraph? Notice the preceding sentence is a question? All these questions highlight that our perceptions about time are inexact. And now for yet another question. (Sorry). Where does this lead? You expect an answer to all these questions? How should I know? I am used to asking questions.

And how would a lawyer typically answer these questions? (Gosh darn, another question.) But you know the answer. Ask a lawyer: "What about this or that?" And lawyers will customarily preface their answers with: "Well, it all depends, Your Honor...."

I may not know where it leads, but I can tell you what it reflects about the law. Uncertainty pervades the profession. We take educated guesses about what the law allows or disallows, and we try to write opinions that elucidate the law as it applies in certain situations. In some cases we get close to certainty, but absolute certainty is an illusion.

We know this in our everyday lives. We may yearn for certainty, but intuitively we know that time makes certainty certainly uncertain. The intersection of the past, present and future is the insuperable roadblock to reaching unconditional confidence into what the future holds. This is tough on columnists, particularly this columnist. I am writing this column now, but my "now" is not your now. My "now" is now in the past for you. And now, while I am writing this column, your "now" is in the future for me. I have no idea whether you will even be reading this column, in which case, I am like a tree falling in the deserted forest.

This philosophic inquiry into time undermines the myth of the omniscient writer. Let me explain. In my last column, I spoke of the superb Los Angeles Lawyers Philharmonic under the direction of its talented conductor Gary Greene. I also shamelessly mentioned that I would be performing in a concert with the orchestra at Disney Hall on Saturday, July 30. For me now, writing this column, the concert has not yet happened. But for you, it has. I have no idea what the reviews are, but you do. As you read these words, I could be on the stage, the one leaving town, not the one at Disney Hall.

Here's another example of how a present action that is good for some becomes a past action in the future that can have unforeseen consequences. Many years ago, I authored an opinion, First Central Coast Bank v. Cuesta Tit. Guarantee Co. (1983) 143 Cal.App.3d 12. A creditor bank tried to garnish funds in an escrow due its judgment debtor, a real estate broker. On the date of the levy, not all the funds had been deposited into escrow. Because the funds due the broker were contingent on additional funds being deposited into escrow, the broker had, at best, a contingent right to collect his fees through escrow. Therefore, on the date of the levy, there were no funds to attach.

How did I know that 20 years later, when my wife and brother-in-law tried to attach funds owed them from a real estate broker judgment debtor, the Cuesta case would prevent them from collecting fees in an escrow due the judgment debtor? In plain speak, you never know when the past will rear up and bite you...somewhere.

That actions we take in the present are influenced by past experiences, and reflect our individual expectations for the future, are nothing to fret about. We cannot predict everything about the future, but we can make good and valid predictions that generally bear out our expectations. Often we have had to sift through numerous facts and, after due refection, have been struck with an insight that justifies a decision that mostly meets our future expectations.

A few days ago Gov. Jerry Brown nominated UC Berkeley law professor Goodwin Liu for the state Supreme Court. I am as close to certainty as possible in predicting that Liu will be one of the great justices to sit on our high court. The governor considered numerous worthy candidates for this position, and no doubt he weighed the merits of worthy sitting judges as opposed to those from practice or academia. But whatever the pros or cons of those competing views, when someone of such stunning brilliance and accomplishment emerges, one knows the present decision will have good future consequences.

Can we predict how Liu will rule on every decision? Of course not. No one, not even Liu, possesses such certainty. But we can be relatively certain his decisions will be made within the framework of his judicial role, and he will be interacting with and considering the views of his distinguished colleagues. And we can be certain that he will reflect carefully on the cases before him and make informed decisions that reflect clear and reasoned analysis.