The Win Column

UNDER SUBMISSION

Why does an appellate justice who spends much of his professional life writing judicial opinions spend a substantial part of his free time (away from the piano) writing newspaper columns?

That question is posed by the publication of "Under Submission," a collection of columns Presiding Justice Arthur Gilbert of California's 2nd Appellate District has produced for the Los Angeles Daily Journal over the past 20 years. A regular reader of the columns as they come out, I have recently reread many of them in search of an answer.

I have concluded that the answer is twofold. It lies in the breadth of Gilbert's writing talents, and the depth of his respect for the constraints of his role of the appellate judge.

Gilbert's literary abilities include the capacity to write clear and concise prose, to express forceful views on a wide range of issues, to exercise a sharp but good-natured wit, and, perhaps most precious, to use language to explore the paradoxical nature of the human condition.

Each of these talents make a contribution to the recognized excellence of Gilbert's judicial opinions, but his self-denying judicial ethos compels him hold all but the first in check in his opinions.

First, Gilbert holds it essential to remove his personal preferences and values from the process of decision-making and opinion-writing insofar as possible. For him, the purpose of a judicial opinion is not to impose his own views, but to formulate, articulate and apply the relevant rule of law based on his best understanding of the principles and policies that undergird our legal system.

Second, Gilbert understands that the purpose of judicial opinions is to give clear guidance to bench and bar, and he strives to make his opinions as clear and concise as possible. There are no words beyond those necessary to make clear what must be done to comply the law in the particular case, and to justify that conclusion by reasoning connecting it to the relevant standards of law.

Sometimes meeting those needs requires a disquisition on an aspect of the law, like Gilbert's much-quoted discussions of writ decisions in Omaha Indemnity Co. v. Superior Court, 209 Cal.App.3d 1266 (1989), and of the "much abused" abuse of discretion standard of review in Zeismer v. Superior Court, 107 Cal.App.4th 36 (2003).

But Gilbert has his column to express his strongly held views on other issues in appellate law in ways that may not be appropriate for judicial opinions. For example, his first column stated his opposition to the abominable practice of depublication, and in two columns since he has argued against the use of footnotes in judicial opinions.

Further, judicial opinions offer no opportunity to celebrate remarkable people on their passing, as Gilbert has done repeatedly in his columns, giving us elegant and evocative profiles of such diverse individuals as Bernard Witkin, Chief Justice Phil Gibson and Artie Shaw.

So too, while Gilbert's opinions are not devoid of humor, he gives far freer reign to his wit in his columns. His opinions include the occasional quote from Gilbert and Sullivan when a propos, but he is unlikely to write an opinion about an oat field that would justify the wordplay in his column on the immortal song "Mairzy Doats." He has also shown an endearing capacity to laugh at his own foibles in columns illuminating such aspects of the human comedy as colonoscopies.

But perhaps most striking is Gilbert's capacity to write about the mysteries and paradoxes of our daily lives as humans. An understanding of those mysteries lives beneath the surface of Gilbert's opinions. However neutral and objective they may be, they are animated by his deep understanding of the human condition. At the same time, they could not serve as effective guides to the law if they gave full expression to that paradoxical condition. Those elusive truths are best expressed, not in judicial logic, but in fiction, allowing us to grasp the complexities of our own lives by entering imaginatively into the lives of others.

Gilbert's body of fiction starts with one of his most enduring creations: Judge Learned Foote. At his introduction in 1992, Foote may have been no more than a comic device to display some of judges' worst foibles. Over the years, since he has grown into a fictional character with complexity and dimension. Though learned and intelligent, he is also small-minded, rigid, petty and vindictive. Yet, he has a flinty integrity that earns our respect as well as our exasperation and laughter. Over the years, I have always looked forward to new columns about Foote's exploits and debacles, because they are fun, and because they provide insight into the problematics of judging and being human.

Gilbert's delineations of Foote reach there culmination (so far) at the end of "Under Submission." There, along with another fictional creation, Justice Axel Peel, Judge Foote is given more expansive life in a series of short stories. These stories, and particularly in the last of them, "Arts and Crafts," deepen the exploration of both judging and humanity, neither shying away from their paradoxical nature nor attempting easy resolution of those paradoxes. We are left, not with answers, but with troubling questions that lead beyond the surface of the words to the mysteries beneath.

"Under Submission" is delightful, instructive and deeply involving. It is also the kind of collection that rewards whether you read large chunks at a time, or just open it anywhere and read a column or two (though it will likely be difficult to stop at one or two).

And beyond the rewards of reading "Under Submission," buying the book (available on Amazon and through the California Judges Association) has the added advantage of doing good: the proceeds go to the California Judge's Foundation. Whether you are interested in enriching your life, or doing some good in the world, or both, "Under Submission" is a worthy investment.