Remembering the decency, respect, and strive for excellence of both RBG and appellate lawyer Ellis Horvitz

Yes, in my last column I promised to continue “our” (I guess it’s really “my”) discussion of implicit bias and the hazards of an over-correction to avoid what some might perceive as offensive words. Despite warnings from friends and colleagues of dire consequences if I forged ahead with this mission, I resolved to do so. Only it will not happen in this column. No, I did not chicken out. It’s just that this is my April column, and “April is the cruelest month.” So, why not write about something wonderful and uplifting for April? And in the more cheerful month of May, it might be safer to write about a topic to balance our unbridled May joy.

A few weeks ago, I had the pleasure of attending, via Zoom, the Second Annual Lecture on the Occasion of the Birth of Justice Ruth Bader Ginsberg sponsored by the National Judicial College. Justice Goodwin Liu delivered the lecture. “Lecture” seems too formal, too staid to describe Justice Liu’s warm and touching tribute. I prefer to call this a substantive reminiscence. The joy that Justice Liu experienced as RBG’s clerk, his time with this remarkable jurist, set an invaluable model for him to follow when he became a member of our Supreme Court. What Justice Liu learned and what he put into practice in his own distinguished judicial career sets a standard all judges should strive to achieve. Indeed, all in the legal profession and beyond can learn from the example set by RBG. I hope I can, pardon the expression, do justice to Justice Liu’s moving tribute. What Justice Liu conveys to us in describing RBG’s approach to judging we can add to Socrates’ famous dictum about the ideal judge.

Justice Liu became one of RBG’s clerks, just when the U.S. Supreme Court was considering the highly controversial case of Bush v. Gore. Despite the highly charged atmosphere in light of what was at stake in this momentous decision, RBG maintained collegiality and respect for her colleagues with differing points of view. This was motivated by something more than the practical acknowledgement that there will be other cases to decide in the future, but reflected her fundamental decency and respect for others. Please note the acronym “SCOTUS” will not appear in this column, but RBG is ok.

There is a book on my desk, in which I occasionally peruse a passage or two when I feel the need. It is titled, “Don’t Sweat the Small Stuff… “ by Richard Carlson, Ph.D. (Hyperion 1961). Justice Liu’s talk freed me from the compulsion to consult this book now and then, at least when I am drafting an opinion. RBG teaches through example that we should “sweat the small stuff.” The opinion should contain only the “stuff” that is germane to the opinion. In a well-crafted opinion, everything counts and the sweat is worth it. I try, but no doubt fail, to follow this axiom in anything I write, including this column.

RBG teaches that a judicial opinion requires a good lead. Write a summary of the case in clear, concise language. I found this approach is not only invaluable to readers of a judicial opinion, but this tests the thinking of the writer. It supplies the answer to the question, “What is this case about?” I strongly advise this approach for those who write appellate briefs. And I am compelled to add that the attributes “clear” and “concise” apply to the entire opinion. Do we need a plethora of 70- and 80-page opinions? Often that is a good way to lose the reader.

From this follows RBG’s advice for writers to use their own voice. I read that to mean one’s authentic voice, the one that is not forced or artificial. The one that reflects you, the writer. The writers who read and re-read their opinions, and by doing so edit and edit some more, are more likely to achieve this goal.

And Justice Liu concluded with the most important lesson he learned from RBG, the effect the law has on people, not as an abstraction, but as “a practical tool by which real people wield power and exert force and make claims on one another.” These invaluable lessons are inspirational and practical. They make us better in our professions and remind us of our better natures.

And now a transition for a sad goodbye to premier appellate lawyer, Ellis Horvitz, who passed away last week. I, and countless others, admired Ellis as an advocate, but I also was fortunate to call him a friend. Ellis and I were brought together by our admiration for a unique jurist. Many decades ago, I, along with a multitude of recent graduates who passed the bar, were sworn in by then California’s Chief Justice Phil Gibson. Chief Gibson spoke to us with such warmth and encouragement that it made a lasting impression on me. Many years ago, I was invited to speak at the Monterey Bar Association and met Gibson’s son, Blaine. We stayed in the restaurant till closing, long after everyone had left, and talked about his father. We met several times after that first meeting, and through Blaine, I learned about Gibson’s exceptional life. This, in turn, prompted a few columns about this remarkable justice who did not covet the limelight.

I received a call from Ellis who informed me he had clerked for Gibson. What followed was a lunch that lasted at least three hours. Ellis told me stories about Gibson. In many ways, his portrayal of Gibson’s character and sensitivity were similar to Justice Liu’s description of Justice Ginsburg. I would guess that the soft-spoken Ellis, with his insistence on perfection, could be forceful and demanding of excellence in the firm that bore his name. But he had tears in his eyes as he related stories about Chief Gibson. I believe the influence of Gibson as a person and jurist greatly contributed to Ellis becoming a premier appellate lawyer. Ellis and I appeared together on panels devoted to legal education, and Barbara and I enjoyed dinners with Ellis and his wife Angela. Although we say goodbye Ellis, the example he set lives on and on.