And the winner is…

Does anyone praise or care about Sierra Leone? Please, not a reference to the country. No offense intended. My reference is to the racehorse Sierra Leone. She came in second in this year's running of the Kentucky Derby. Mystic Dan won the race, by a hair, or is it a nose? 2:03.34 minutes. Sierra Leone came in a fraction of a second behind. Numbers go on for infinity, so the mathematicians tell us. Fractions of a second can determine the difference between triumph or ignominious defeat. Wonder how chariot races were measured in Greece, I mean ancient Greece in 700 BC?

In our competitive society, a fraction of a second lacks elan. In some quarters, honorable mention means you are a loser. This winning or losing thing has gotten out of hand. Does Mystic Dan even know he won the race? Does he care? "Do I get more oats now?"

Sure I am willing to praise the horse and the skill of the jockey, and let's not forget the credit due the trainers, the ones who do not put drug enhancers in the horses' oats. But the ones who take credit and are interviewed extensively are the owners. What is so great about them? What did they do, other than spend money and hope they picked the right horse and staff to train that horse? The interviews should be more focused on the jockeys and trainers.

I see a similarity with horse owners and litigants who prevail (notice I did not write "win"). The credit should go to the attorney or attorneys who represent them. I refer to hard cases, not ones where even a dolt could win, I mean prevail. In cases where there is little doubt about the outcome, litigants could easily represent themselves. Of course this assumes they know how to draft a complaint, file an information statement, and are familiar with the civil, civil procedure and evidence codes. Apologies again. I mean no offense to self-represented litigants. In fact, I admire them, particularly when they are able to follow the myriad rules that so many lawyers and judges find confusing.

In law there is not a second best. A lawyer loses, I mean does not prevail in a close case, and no pat on the back from the client. Judges have it tough too. For example, assume a trial court is reversed by the Court of Appeal in a two-to-one opinion. The "Well, at least I got a vote from..." sorry, that doesn't cut it. But if the Supreme Court takes the case and reverses the Court of Appeal... sheer ecstasy. That's how I used to feel when I was a superior court judge.

Now, from my current vantage point, Supreme Court denials of petitions for review are ok, but an affirmance is, as my Aunt used to say, "nothing to be sneezed at." I looked up the phrase. Goes back to the 17th and 18th centuries. Sneezing shows a sense of disapproval or, in this case, a sense of disinterest or boredom.

Speaking of boredom, what happened to the concise, tightly written judicial opinion? You can include me as a subject in this query. Acknowledgement - I want to appear fair and objective. It's not just judicial opinions, but briefs, taking a hint from the opinions, are going on and on and on. I once received a petition for rehearing from the prevailing party suggesting I write a longer opinion. Oh dear.

Guess this is a good time to change the subject. There has been much coverage of student protests at universities throughout the country. This brings me back to my days in law school at Berkeley. In my third year in law school, I lived in an old duplex at 2525 Dwight Way with my roommate Pete Leiter and our cat Diogenes. The land was owned by the University of California. The year after I graduated, the apartment was razed to make way for student housing. Protests against the Vietnam war were raging and students took over the land which became known as People's Park. Even then, I was trying to figure how preventing the building of student housing would bring the Vietnam war to an end.

I commend for your viewing Supreme Court Justice Liu's commencement address to the USC law graduating class. The Hon. Goodwin Liu - 2024 Commencement (JD & Undergraduate) Keynote Address (youtube.com). It is warm, engaging, and filled with good advice for students and all of us.

And, finally, a must for everyone, Dean Erwin Chemerinsky's latest book, "Worse Than Nothing - The Dangerous Fallacy of Originalism," (Yale University Press, 2022). I had the pleasure of interviewing the author on his book a few days ago. However you view the topic, like all of Professor Chemerinsky's works and lectures, your mind will stand at attention. And his writing, with its clarity and concision, is a model we all should follow.

So, as they used to say in journalism, that's 34...I mean 30.