by Justice William W. Bedsworth
If you had told me fifty years ago that when I reached seventy I’d be working nights and weekends, I would have dropped out of law school and gone into aluminum siding. I’ve always said that if I’d had a decent high school guidance counselor I’d be doing play-by-play for the Lodi Crushers instead of trying to divine legislative intent.1
And yet, here I am, long after I thought I would have hung up my cleats, reading briefs some evenings and most every weekend.
It’s largely my own fault. I managed to wangle a job that can be done—in part—nights and weekends. If I were still a trial judge, I couldn’t do that.
On the other hand, if I were still a trial judge, I’d be done by now. I did that job for ten years and it is much tougher than most folks appreciate. If I were still doing what those brave folks do, I would have retired twenty minutes after my retirement vested.
And if I were still practicing, I’d have retired long ago. That’s even tougher than being a trial judge. How the Jim Riddets and John Hurlbuts and Lloyd Freebergs of the world keep doing that into their seventies, I will never understand.
But the job I’ve got2 allows me to take work home. Unlike trial work, all my tests are open book, and since the books are no longer paper, but rather electronic impulses flying through the intertubes into the transmotic vacuum flanges of my computer, the books are literally at my fingertips. And my fingertips—until further notice—are wherever I am.
So I come home in the evening, open up a file, turn on a ballgame, and start reading a lecture3 on statutes of repose versus statutes of limitation filed by someone I hope will make the subject intelligible for me so I will be able to understand her opponent’s lecture which follows immediately.
This education is best accomplished during the sixteen months of the baseball season. Hockey and basketball are similarly interminable—Jim Murray once wrote that if World War II had been scheduled by the same guy who does the NBA season, Japan and Germany would still be in it—but those games require what the Supreme Court would call strict scrutiny. The players are constantly moving and if you closely examine a case citation, you’re liable to look up and find your team has somehow given up eleven straight points or is two men short.
Baseball, on the other hand, is eight minutes of action spread out over an entire evening. I stop reading long enough to watch my beloved Angels bat (that seldom takes long) and then return to the Welfare and Institutions Code—which, as near as I can determine, was a joint effort of Herman Melville and James Michener; the dang thing goes on forever.
And if, Lord forbid, I should miss the ten seconds it takes someone to leg out a triple, I just push a button on my remote twice and watch it all over again—in slow motion if I want.
Barring those rare moments, I can read a full six pages of argument, two of the cases relied upon to support that argument, and double-check the language of the statute, and all I’ve missed is four foul balls, a visit to the mound, and an instant replay review.4
This is a great pace at which to familiarize myself with a case. Obviously, I can’t do any serious analysis with divided attention, even if the division is the minimal time required by baseball action—time comparable to having a radio on in the background and stopping occasionally to listen to a favorite song—but I can get an idea of what the case is about and let my thoughts about it start percolating.
The languid procession of the ballgame perfectly accommodates the thoughtful progression of my familiarization with the issues. Other sports are all based on speed and deception. Baseball is slow . . . cerebral . . . maddeningly static.
Don’t get me wrong; I love baseball. Baseball was my first love. My mom always insisted I learned to read only because I found out there was baseball news in the sports pages.
But baseball is like a cat: it doesn’t demand your attention so much as allow it.
So working at nights and on the weekends is not such a bad deal—at least during baseball season. And I have to do it because the issues keep getting tougher.
I am not alone in this assessment. I’ve discussed it with the other Trappists here in the ivory tower, and no one has corrected me. The consensus is that every calendar includes a couple of issues that make us long for the relative simplicity of the law school exam questions devised by our sadistic faculties.
This is counter-intuitive for me. I had thought as I gathered experience and increased my store of knowledge, the practice of law would get easier—and in some ways it has.
But the quality of the lawyering has improved at a pace greater than my accumulation of black-letter law, battle lessons, shortcuts, and economies of scale. True, there are more cases now in which I say, “Oh yeah, I’ve dealt with this issue lots of times,” but there are many more cases in which I say, “They did what?” or “Can they do that?” or “I’ve never seen that before.”
Statutes I’ve been applying for almost a half-century without visible scars are now suddenly sprouting thorns, spines, and hitherto hidden barbs that make them as disagreeable and difficult as jellyfish. And the lawyers who breed these new complications are both well-trained and well-armed.
The 21st century lawyer has access to tons more information than my generation did and much greater ability to distill from that information the stuff that’s really pertinent. She5 can cull out issues that have been unsuccessful before—or find the one opinion that expresses that failure in a way she can distinguish in her own case. She can find well-reasoned opinions from other jurisdictions whose rules seem better than ours. She can fashion a much more presentable purse from a sow’s ear. Too often I find myself thinking, “I don’t know, Rich, it looks like silk.”
So I not only have to deal with the lawyers of my generation, who have learned a lot during the forty-to-fifty years they’ve been practicing and are much more formidable than they were when we were rookies, I also have to deal with a couple of generations of lawyers who are lacking in that experience but are whip-smart and bionically enhanced.
I have one attorney reminding me that Gazorninplat v. Finkleman was decided three days before the Supreme Court’s Mafuffnik case was handed down but four days after the Fifth Circuit’s Phahonphonphayuhasena case. And while I’m struggling with the significance of that timeline,6 the other attorney hastens to point out that even if I don’t apply Gazorninplat, he has fourteen cases from federal courts that arrived at decisions favoring his position7—including one from Guam that was particularly apropos since the plaintiff in that case had red hair and a limp, just as his client does.
With research like that before you, pre-analysis familiarization with a case is a sine qua non. Doing without it is like preparing coquilles St. Jacques for the French ambassador without a sous chef.
I don’t have a sous chef. I have baseball.8 Enjoy the World Series.
William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. He can be contacted at email@example.com. And look for his new book, Lawyers, Gubs, and Monkeys, through Amazon and Vandeplas Publishing.