May 2018 – It Seemed Like Such a Good Idea…

by Justice William W. Bedsworth

Our profession—and our planet—is poorer for having recently lost my friend Cliff Roberts.

Cliff was a spectacular lawyer and an even better human being. For all of us who live with lawyer jokes on a daily basis, it is always reassuring to look at people like Cliff and know the truth: our ranks include a lot of kind, caring people who enrich the planet.

One of Cliff’s defining characteristics was his sense of humor. My experience with lawyers is that most of them share this trait. That’s why I’ve been allowed to fill this space for thirty-seven years.

It makes sense that lawyers would laugh easily. Humor is based on incongruity. Finding something funny depends on being able to see that two things are somehow out of order, incorrectly juxtaposed. The comic shines a light on that disparity.

The practice of law depends on a variant of the same skill set. It requires being able to see that two things are not juxtaposed correctly. The lawyer tries to reorder that disparity.

So for all our flaws—real or imagined—lawyers are generally good at laughter. And Cliff was world-class great at it.

One of my favorites of his jokes had to do with his plan to provide himself the ultimate singles bar pick-up line.1 He was going to tell women—truthfully—that he was an Olympic diver.

The plan was that he would move to Kenya and hire the world’s greatest diving coach to teach him one dive. Cliff would practice that dive—doing nothing else—for a year. Every day, over and over.

He would go to the Olympics as the Kenyan Diving Team—a la the Jamaican bobsled team—since he would be the only diver in Kenya.

In the first round of the competition, he would do the one dive he knew. He would perform it flawlessly, having done nothing else for the previous year. Then, as he crawled out of the pool, he would grab his hamstring, cry out in pain, limp to the locker room, and spend the rest of his life telling women, “I was leading the Olympics, but had to pull out due to injury.”

Over the years, I’ve probably gotten more laughs than Cliff out of that story. I’ve loved telling it—especially to people who knew Cliff and could therefore fully appreciate the incongruity of the story, given Cliff’s character. It was really just Cliff seeing a loophole—as lawyers are so well trained to do—and imagining its exploitation.

At least that’s all it was until February. In February, I watched Cliff’s joke become reality. At the Winter Olympics.

Elizabeth Slaney, a 33-year-old American graduate of my grad school alma mater2 and Harvard’s business school3 showed up in Pyeong Chang as part of the nineteen-member Hungarian Olympic Ski Team. Specifically, she showed up as their only freestyle skier, the last competitor in the half-pipe skiing competition.

She got there much as Cliff had envisioned. She chose the least popular Olympic sport she could imagine, and began entering World Cup freestyle skiing competitions all over the world.

Each time she would ski much below world class in terms of skills, but she managed to stay upright in her pedestrian program, while skiers actually attempting the pyrotechnic and dangerous tricks expected at the World Cup level of competition were falling. In this way she avoided finishing last and eventually racked up enough competition points to qualify for the Olympics.4

She then took advantage of an Olympic loophole that allows you to compete for a country even if you have never set foot in it. Because she had a Hungarian grandparent,5 she qualified to compete for Hungary.6

Well, maybe “compete” overstates it.

For the benefit of those of you unfamiliar with freestyle skiing, it was originally designed as an exit strategy for people with terminal illnesses who live in states where suicide is not allowed. Later, some maniac devised a scoring system for it more complicated than defining success as a fatal landing, and a sport was born.

Most of the competitors are teenagers who have yet to realize they are not ten feet tall and bullet-proof. They fly straight up out of a halfpipe, ascend several stories into the air, and then spin and tumble earthward like so many bits of confetti in parkas and helmets.

Just watching them gives you vertigo. So help me, I could hear the fluids in my inner ear crashing around like waves on the North Shore. I was so dizzy I had to crawl to the refrigerator for refreshments between competitors.

If God had meant for human beings to flit about like that, She would have made us hummingbirds.

Elizabeth Slaney, by contrast, flits about like a bus bench in a light breeze.

She attempts no flips, no spins, no somersaults. At no point is she off the ground longer than the center on your local high school’s junior varsity basketball team. Instead, she traverses back and forth across the halfpipe like a prisoner impatiently awaiting the arrival of dinner.

She does this from the top of the course to the bottom. If I knew an antonym for “pyrotechnic,” I would use it here.

Don’t misunderstand me. That’s a whole helluva lot more skill and daring than I would display under similar circumstances. For that matter, it’s more than I would display under any circumstances. The idea of strapping fiberglass slats to your feet and trying to see how many bones you can break before they have to remove your spleen sets off my risk aversion warning systems with or without aerial stunts.

But it’s not an Olympic-level performance (she finished dead last), and I’m not sure it makes you an Olympian.

Opinion is divided about this. Even my opinion.

Ms. Slaney’s performance caused the Twittersphere—or at least that part of it not taken up by the president—to explode with brickbats. There was no shortage of correspondents with pitchforks and torches dipped in poisonous ink.

But there were also quite a few apologists for Ms. Slaney. To many, she was an indomitable pioneer who had done no harm and pursued her quixotic dream to a commendable conclusion.

I was of two minds before I read all these divergent points of view, and of six or eight minds by the time I was finished. I finally decided I had more important decisions to make,7 and moved on to other mysteries.

But I was surprised that my friend’s Olympic dream—so funny and entertaining in the abstract—was so problematic in real life. When I thought of it as a theoretical proposition—the plot of a caper movie starring Matt Damon—I liked it. But when I saw it actually carried out, it had an element of “gaming the system” to it that I wasn’t entirely comfortable with.

It was something like those moments when an attorney stands in front of me and says, “Your Honor, an argument could be made that . . .” and I know the line of reasoning that follows—no matter what it is—will be better in contemplation than in actuality.

Whenever an attorney starts a sentence like that, I find myself wanting to interrupt and say, “By whom, Counsel? Who could make this argument? Your barber? Your college roommate? Your cousin Vinny? Because it sounds like it’s not an argument you and your law firm want to put your reputation on the line for. It sounds like something you want to put in the mouth of some anonymous stranger.”

But I don’t say that. I just listen to the argument, knowing that its preface has doomed it to failure, but the attorney was doing the best he or she could and meant no harm.

Which is kind of the way I feel about Elizabeth Slaney. On balance, I think her Olympic experience was better as a joke than as an escapade. But, in the words of the great legal philosopher Oliver Wendell “Chick” Hearn, “No harm, no foul.”

And the next time I birdie the first hole, I will think of Cliff Roberts, and I will turn to my playing partners and say, as I always do, “Time to grab my hamstring and limp off the course.”


  1. A tool he had no use for except laughter, having found the love of his life—acclaimed homicide prosecutor Jill Roberts—when he was twenty.
  2. Go Bears!
  3. Cal’s not entirely responsible for this one.
  4. Loophole Number 1.
  5. Loophole Number 2.
  6. Four years ago she tried to join the Venezuelan freestyle ski team by claiming her mother’s Venezuelan heritage, but was unable to raise enough money. Hard to imagine a shortage of funds to fill such a clear need, but that does appear to be the case.
  7. Bad news for any of you who practice appellate law.


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 william.bedsworth@jud.ca.gov. And look for his new book, Lawyers, Gubs, and Monkeys, through Amazon and Vandeplas Publishing.