February 2016 - Cruel and Usual
by Justice William W. Bedsworth
T. S. Eliot famously wrote that “April is the cruellest month.”1 He was wrong. February is.
Eliot was wrong about other things. He thought, “Let us go then you and I, when the evening is spread out against the sky, like a patient etherized upon a table,” was poetic. Those are—in prose form, but otherwise unchanged—the first twenty-six words of “The Love Song of J. Alfred Prufrock”—generally acknowledged as one of the best poems of a great poet.
I’m sorry. Comparing an evening sky to someone about to undergo surgery and shoehorning into our defenseless minds the image of that person “spread out” on an operating table is no way to start a conversation, much less a poem. I’ve always maintained that if Mr. Eliot had tried that line out in a singles bar just once, “Love Song” would have been a much different and much greater poem.2
But the critics love it—my favorite English professor loved it with the same passion I reserve for the designated hitter rule. I remind myself of that whenever I write an unpopular opinion: even smart people who study their area of expertise long and hard are going to make mistakes. Remembering that makes it easier to understand how all those people can be wrong about my opinion.
But getting back to February,3 it’s much crueler than April. For one thing it’s the meanest part of winter. It’s the month when all our friends in colder climes greet snow not by smiling and sticking out their tongues, but by casting baleful glances at the snow shovel and totaling up their chiropractic bills for the previous sixty days. It’s when, “I’m ready for this winter to be over,” turns into, “I’m ready for this blankety-blank, glaf-mopping, bronkle-freeping winter to be over.”
It’s the month when our baseball teams set us up for failure, the month when we pathetically convince ourselves again that this year our beloved Seraphim or Trolley-Dodgers4 are actually going to field the best team of millionaires in the whole league—maybe in the whole world.
Encouraging this kind of naïve credulity is much crueler than April’s piteous little mid-month tax bite. Taking money is painful; guaranteeing disappointment ... that’s cruel.
And it’s the month when our court resumes oral arguments after a blessed month off in January.
You may wonder why we take a break from oral arguments in January. You may wonder why other courts take July or December—or both—to break from oral arguments, but we take January. And the answer is that we have a very good reason.
I would explain the reason to you, but I’m sure the Presiding Justice would prefer that you ask her rather than being stuck with my explanation. I have a deal with the Presiding Justice: I don’t try to explain her and she doesn’t try to explain me. Obviously, she got the better part of that bargain.
You might also wonder why I view the resumption of oral arguments as such a downer. The answer requires that I resort to legal jargon, but I’m writing for a specialized audience, so I think I can do so with impunity: They’re freaking hard.
This may not be immediately apparent. I remember as a boy asking my father if we could go to the movies one night. His response was, “No, Billy, I’m too tired.” I was completely mystified by that answer. How could you be too tired to go to the movies? All you did was sit and watch.
In fact, my dad worked at least two jobs throughout my childhood, and no one had a better claim to being too tired for a movie than my dad. Even if it did just involve sitting and watching. And by the time I had children of my own, I completely understood being too tired to go to the movies.
But that’s not what oral argument is. It may seem to you that we’re just sitting and watching.5 But we aren’t.
Just as I was amazed to find out how much concentration and focused attention were required to preside over a jury trial, I was astonished to learn how much effort oral arguments require of me.
Oh sure, part of it is my pending septuagenicity,6 but even when I started, nineteen years ago, it wore me out. The job requires that you understand a half-dozen cases a day well enough to discuss them with people who know them inside out.
The lawyers come into court with one—at most two—cases to argue that day. I have somewhere between two and nine. And I not only have to listen to their explications, I have to be satisfied that I understand them well enough to make a decision about their correctness.
These people have worked their butts off on these cases. And their clients have personal liberty or personal property at stake. Indeed, almost all of them have large amounts of personal property7 at stake, and there is no such thing as a small amount of personal liberty when it’s your own. They deserve a concomitant amount of attention.
If you don’t think that’s hard to deliver, watch an episode of Modern Family, record it on your DVR, then watch it again. See how tough it is to watch even the most entertaining presentation a second time and hang on every word.8 (Keep in mind, between reading the briefs, reviewing the record, and discussing these issues amongst ourselves, this is at least the second time these arguments have been made to us.)
Then imagine that every few minutes they throw in something you haven’t heard before—at least not in those terms—and you have to be able to integrate that into the story and challenge it if it doesn’t fit. And remember there will be not just a quiz, but a final exam afterward, so you have to be sure you have all the characters, lines, and scene changes straight.
Just as you had to do with the preceding five episodes of this afternoon’s calendar.9
Don’t get me wrong. I’ve got the easy job. The trial folks have to do all that and periodically yell “safe” or “out.” They can’t go back afterward and listen to the recording of the arguments until they are confident they understand them. They have seconds to make a call; minutes if they take a recess; an hour if they get lucky and the call comes just before lunch.
I get ninety days. And I have lawyers and other judges to help me.10
My job is easier, but I still have to give it everything I’ve got. We’re the last step in a complicated process. It’s not a successful moon landing if the capsule crashes in Mongolia instead of splashing down a few hundred yards from the recovery team on the aircraft carrier. It’s an honest day’s work any way you cut it.
But January, when you’re still coming down from your holiday high, and you have nothing to do but read briefs and cases ... when your hockey team is playing well and Springsteen’s touring ... when you don’t lose three days preparing for oral arguments and five days hearing them ... January is pretty sweet.
Crashing back down to reality in February is a cruel gravitational swindle. By April we’re resigned to being back in harness, but February’s tough.
Besides, April includes Opening Day. And as has been well chronicled by better minds than mine, “Life begins on Opening Day.”
So you’d be well advised to cut me some slack in February. I’ll be fine by April.
- The Waste Land, 1922.
- According to my spellcheck program, he was also wrong about how many ls there are in “cruelest,” but I’m willing to forgive him that because he was writing on the wrong side of the Atlantic, which doubtless complicated things for him.
- Or had you forgotten that was where we started?
- “Dodgers” is a shortened form of “Trolley-Dodgers,” a pejorative used by residents of Manhattan to refer to Brooklynites early in the last century. The team adopted it as their nickname, much as the Vancouver hockey team adopted “Canucks.”
- Note the use of the verb “watch” here rather than the verb “listen.” I’m sure you sometimes find it hard to give us credit for the latter.
- Septuagenociousness? Septuaganderanism?
- Dad was a casketmaker; five-figure sums will always be a big deal to me.
- And if you think your arguments are as entertaining as Modern Family, you’re in need of professional help.
- The last time I ate lunch before an afternoon session of court, Ronald Reagan was president.
- Including the judge who probably got it right at the trial level.
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 third book, Lawyers, Gubs, and Monkeys, through Amazon and Vandeplas Publishing.