A Bitter Balm

UNDER SUBMISSION

After the Los Angeles Lakers lost one of their games to the Sacramento Kings at the Western Conference Finals, Shaquille O'Neal said the only way to beat the Lakers "starts with a C and ends with a T." Sports reporters were speculating wildly about what word or words the big Shaq had in mind. Perhaps the statement was merely an example of Shaq's legendary irony.

Before this humiliating defeat, I thought he might be saying "can't," or "can't do it." He could not have meant "cheat" could he? For some people, Shaq's letters more appropriately meant what he did not intend, "cheap shot." In retrospect, Shaq's comment seems petty in light of the Lakers' winning the NBA world championship.

Although I am not sure of the meaning of Shaq's enigmatic letters, I am sure that speculation about them or anything else often leads one down blind alleys. For example, I often have described certain judicial decisions with the letters C and S. I was thunderstruck at the astonishing combination of words seemingly thoughtful people believed the letters stood for. No one got it. Why are the words "common sense" so elusive?

But why be inscrutable? It only gives journalists and commentators something to ponder and ultimately distort. I think it is better to come out and say exactly what you mean. That assumes you know what you mean and have the means to say it.

Shaq's cagey remark seems to reflect his belief that the referees contributed to the defeat. In every game, there are questionable calls from the referees, and all teams have a legitimate beef about a "bad call" now and then. After all, referees are simply judges making calls as best they can.

But these basketball referees are like the Supreme Court. Their errors may be criticized, but they are the last word, and there isn't much to do about it but gripe. Just ask coach Rick Adelman after losing the Western Conference finals to the Lakers.

Yet I know how Adelman feels and how Shaq felt at the time of his obscure reference to the "C---T" word or words. Lawyers seek to admit evidence, and some judge says it is error to do so. That "call" can mean the loss of the case.

But even the judges face similar frustration. A reversal from a higher court usually means the judge below screwed up - I mean prejudicially erred. But cryptic alphabetic fulminations may be more the sour expression of a poor loser than the clever retort of a good-natured loser.

To trial judges, I would advise that, instead of grousing about dimwitted appellate judges who they believe skew, if not falsify, the record to reach a desired result, it is best to accept a reversal with a smile, if not a measure of good will, and attempt to do better next time.

To lawyers, I caution against the pusillanimity of an anonymous fusillade in a Daily Journal profile which begins with the oxymoronic lawyer who wishes not to be identified. Even worse are those adulators or sycophants who praise so faintly that the acclaim is a disguised insult. Example, "Judge Grendle always tries to do the right thing." Now there's a real tribute. What could be more flattering than to be distinguished from the legions of judges who try to do the wrong thing?

Realizing that it is best to set an example by practicing what one preaches, I have decided to reveal my errors, offering explanations only when appropriate. In this way, I hope to encourage others, particularly judges and lawyers, to do likewise. And besides, it is de rigueur to reveal as much as possible about one's fallibility in public.

I have decided not to review reversals of my cases. We have limited space, and this is not a monthly column. And besides, what is the point in emphasizing those rare misguided decisions of our Supreme Court. Nor will I comment on cases such as the questionable Moncharsh v. Heily & Blase, 3 Cal.4th 1 (1992), in which the California Supreme Court rightfully affirmed my opinion but lamentably reversed my dicta, which had relied on decades of well-established precedent. Instead, I must own up to certain errors, or losses, if you will, that have occurred on rare occasions in my Daily Journal columns.

In one column, I said, "It is me." I received a letter from a devoted reader who was shocked that I could have been guilty of such an alarming lapse in grammar.

Fowler's Modern English Usage informs us that, although "it is I" is grammatically correct, the colloquial "it is me" is at least sanctioned. A Dictionary of Modern English Usage, Second Edition, H.W. Fowler, revised by Sir Ernest Gowers, Oxford University Press, 1983. I prefer the more conversational, self-effacing "it is only me." Between you and me, (Fowler would not sanction that "piece of false grammar, between you and I"), "it is I" is much too pretentious for me, or anyone else.

In a column about the passing of the noted master of plain English, law professor, David Mellinkoff, I said in one sentence, "While composing this column, David is looking over my shoulder with the customary twinkle in his eye."

In a "gotcha" letter, a reader wrote to reproach me for my confusing if not dangling participle. He could not tell who was composing the column, Mellinkoff or me - I mean I. Because the sentence occurred in my column, I wondered how it could be all that confusing. OK. I suppose I could have written the sentence more clearly.

Chastened, I replied in a humble missive, detailing the innumerable solecisms that dominated his letter to me. I alluded to his penchant for cacology and signed off with "Sincerely yours." However ineffective may have been my prickly response, I bet he reached for the dictionary.

In one column, I added the number of motions likely to come up in a hypothetical law and motion nightmare. Somehow, don't ask me why, the total came to 171/2 motions. If you consider that one judge has been reputed to stop reading after Page 15, maybe the fraction works.

And then, there was my recent column about footnotes. It was designed to refute the thesis of noted legal grammarian and editor of Black's Law Dictionary, Byron Garner, that judicial opinions would be much improved by placing case citations in footnotes.

In a flashy, yet deft, show of ironic wit, I placed a footnote in the middle of the article. During electronic transmission of my column to the Daily Journal, the laws of caprice, which govern the ethereal expanse of cyberspace, applied their perversity to my footnote. It was transmogrified into the last paragraph of the column. Of course, the paragraph made no sense as the peroration of what otherwise would have been a brilliant column.

A lawyer, who probably lost a case in my court, sent the column to Garner with a letter in which he questioned my sanity. I know this because he thoughtfully sent a copy of the letter to me.

And then, there was the trenchant column I did about shortcuts in research which lead to plagiarism. I must have been tired because I inadvertently changed the last name of Doris Stearns Goodwin to Goodman. That is probably why she did not sue me for defamation.

There, I feel much better now. Thanks for indulging me. I just hope lawyers, judges, indeed everyone, will profit by my example and follow suit. It is not easy to accept blame for an error you believe is not justified. But to rail against the judge, for example, who ruled against you depletes energy needed for future cases.

Instead, I encourage you to pledge allegiance to the principle of assumption of guilt. At first, you may feel alone, one person under fire, an underdog, exposed without your underpants. But then comes a feeling of liberation, a catharsis through confession.

It just occurred to me that the above may sound a jot too religious. But however evangelical my enthusiasm, in the interest of constitutional propriety, my comments should be taken only in a secular context.

But the preceding paragraph does remind me of Newdow v. U.S. Congress, 2002 DJDAR 7229 (9th Cir. June 26, 2002), the controversial decision declaring the words "under God" in the Pledge of Allegiance to be unconstitutional. The storm of protest over two words leads me to a related point. If you are going to criticize what you perceive to be someone else's error, do so with a reasoned argument instead of a tempestuous tirade. Just think about what emotional invective gives you and your argument. It starts with S and ends with T. That's right -short shrift.