Monday, August 31, 2009

State has too many people in prison - by Judge Jim Gray

Most of us have heard that a federal court mandate is just around the corner requiring California to release as many as 43,000 of its about 160,000 inmates. What is the reason for the mandate? Because most of the prisons are housing almost double the number of people they were designed and built for, and there eventually comes a constitutional limit to the overcrowded conditions that we can or should force people to live in. Imagine almost 200 prisoners with ethnic and racial rivalries triple-bunked in hot weather in barracks designed for 100. That does not serve anyone’s legitimate interests.

California’s governor is right when he says that the state’s prison system is “collapsing under its own weight.” But because neither the governor nor the legislature has done anything to rectify this problem, it has been left to the courts. Many politicians, in trying to appear “tough on crime,” are spreading fear that this could cause imminent threats to our safety if this number of people were to be released. But the facts show that is all it is: fear-mongering.

Some politicians intentionally use fear to manipulate the voters and/or to promote their private interests. I am told that one of the most well-known political advisors who did this had a motto framed and hanging on his office wall that said “Keep ‘Em Scared.” That may be good politics, but it makes for rotten government. So gather the evidence yourself, and be cynical about people who deal in fear.

The evidence shows that, even dealing with the possible release of 43,000 inmates, there is simply no way that anyone who is a threat to our safety would ever even be considered to be set free. So relax, people like Charles Manson, Sirhan Sirhan, Richard Ramirez and other murderers, robbers and rapists will safely stay where they are. You can count on it.

The reason for the overcrowding is that today we literally have tens of thousands of people in prison who simply should not be there. For example, and as we have discussed before in this column, right now there are literally thousands of people in prison who did nothing but smoke marijuana. For whatever reason, they were in prison and then released on parole, always with the condition that they use no form of illicit drug. Then, for one reason or another, they smoked marijuana, which is detectable by urinalysis testing for about a month after use. Thereafter, they either fail to show up to take their tests, or they do show up and test positive, and back to prison they go.

I am not discussing the stupidity of their smoking marijuana under these circumstances, but many of them had again found employment and were putting their lives back in order, and they were again supporting their families. So now all of that progress is lost, their families are back on welfare, and the taxpayers are spending about $40,000 per year once again to keep each one of them in prison. They could have been released yesterday without any threat to our safety.

Then there are other people in prison who are simply unable to be a threat to us. These are prisoners who are so old and feeble that the only thing they could do, if they had the strength, would be to throw their walkers at us. Their detention facilities look like old folks’ homes, with ramps instead of stairways, supporting bars on the toilets, chairs in the showers, and ground-up food on the tables. And, because of their medical problems, it costs taxpayers many hundreds of thousands of dollars per year to keep each one of these geriatrics in custody.

In fact, I recently received an e-mail from a friend who said that she had found the perfect solution to senior health-care problems. Obviously, you know that many seniors are told that they need to give up even the idea of receiving expensive medications for their blood pressure, diabetes, heart problems, etc. And if they need a hip replacement, there is no way it will be funded, because the money will be spent on the younger generation.

Well, the answer is for people older than 70 simply to go out and commit a crime, and then be sent to prison. A roof over your head, three meals per day, and all the health care you can use. Need new teeth, great! Glasses? No problem! New hip, knee, kidney, lung, heart? Bring ’em on. Because if people are in prison, they are constitutionally entitled to good quality medical care. Of course, who will be paying for all of this? The same government that just said that you are too old for health care. And because you are a prisoner, you don’t have to pay any income taxes either! Problems solved!

You might think this is a joke, but that is exactly what taxpayers are now doing for thousands of people in prison. Many of them have been there for decades. On a case-by-case basis, some of the ones who have already spent many years in prison should be released, some to low-security halfway houses, and some should be released outright.

Of course, there are also thousands of nonviolent drug offenders who are spending years in prison for no good purpose. Remember prior columns in which we quoted the RAND Corporation that said, way back in June 1994, that taxpayers get seven times more benefit for their tax money when it is used for drug treatment instead of incarceration? Even for heavy-using drug offenders!

Again, on a case-by-case basis, we should release many of these nonviolent offenders from prison, with the strict condition that they participate meaningfully in a quality drug treatment program. That way, they will be much more likely not to be a drain on society, and the taxpayers can stop spending so much money without purpose. Please bear in mind that 95% of the people who are confined will be released someday. What kind of people will they be when that occurs?

And then there is a new philosophy that is beginning to sweep the nation, and that is the concept of “restorative justice.” This approach encourages a meaningful but much shorter time in custody for the offenders, but then has them released under a strictly applied program of formal probation. But, importantly, it also requires the released offenders, among other things, to get a job and make restitution payments every month to their victims, right off the top from their earnings.

Everyone wins by this system. The offenders are forced into the realization that there are costs for their misdeeds, and that it takes time and effort to pay them. The victims see that they are actually being reimbursed for their losses. That is both psychologically and economically comforting, because their insurance rates start to decrease due to the money being returned to their insurance companies.

And the taxpayers are given a big break because they are no longer required to pay for the continued incarceration of the offenders. So everyone comes out ahead except, of course, the prison guard union, which happens to be the strongest political lobby group in our state today.

Importantly, if violence was involved in the underlying offense, all bets are off. Prison is mostly meant to take violent offenders off the streets, and it should be used more fully for that purpose. But otherwise, we must understand that the United States has only 5% of the world’s population, but a full 25% of its prisoners! As such, we lead the world in the incarceration of our people. And in this case, “We’re No. 1!” should not make us proud.

So don’t let doctrinaire politicians and special-interest lobbyists spread fear about releasing even thousands of these prisoners without facing the evidence. Many of the people in prison shouldn’t have been there in the first place, and others have long since learned all the lessons that incarceration could possibly have taught them. Therefore, every thoughtful person should favor many of these offenders being released, on a case-by-case basis.

JAMES P. GRAY is a retired judge of the Orange County Superior Court, the author of Wearing the Robe – the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2008), and can be contacted at or via his website at .

Sunday, August 23, 2009

Forest fires: another harm of prohibition - by Judge Jim Gray

For the past 17 years, I have, as a sitting judge, been trying to call everyone’s attention to the failures of our nation’s policy of drug prohibition. In fact, the truth is that we are “taking it on the chin” in every way imaginable, such that we literally couldn’t pursue a worse policy if we tried. But even I was not aware of the additional harm that is being caused by this failed and hopeless policy, as represented by the huge forest fire that has been burning east of Santa Maria in Santa Barbara County.

Newspapers report that authorities believe this La Brea fire, which has burned about 90,000 acres, was started by growers of illegal marijuana at a hidden farm in the Los Padres National Forest. The trigger for the fire was a propane-fed outdoor camp stove.

How was this fire caused by our policy of drug prohibition? Well, obviously, fires like this do not occur where companies like Phillip Morris or Ligget and Myers are growing tobacco. First of all, these companies aren’t forced to grow their crops in remote and desolate regions, and secondly, they are much more careful in what they do, because if by chance they do start a fire, they are held responsible for the damage.

On the contrary, illegal growers are forced out into remote areas, and usually onto public lands, because if their operations are discovered, the land can’t be forfeited. In fact, this particular camp is in a steep, overgrown canyon more than a mile from the nearest road. The workers unlawfully diverted streams to use for irrigation, polluted the ground with stacks of propane tanks and melted irrigation tubing, empty fertilizer canisters and large mounds of trash. Of course, even if there hadn’t been a fire, the workers never would have removed any of these items because, being an illegal operation, they are not held responsible for any of the damage they cause.

Once authorities located the camp, they found about 30,000 top-grade marijuana plants that ranged from two to six feet in height.

The workers had gone to the trouble of building terraces for the marijuana plants and installing a drip irrigation system, and probably would have been camping in the area for about four to five months to allow the plants to mature enough for harvesting. But with a street value in the millions of dollars for the marijuana, all of their efforts and inconveniences would have been well compensated.

Authorities also reported that so far this year, they have seized about 225,000 marijuana plants from six different sites in the area, including this one, with a street price of about $675 million.

They further stated that all of the workers they had found so far had been illegal immigrants from Mexico, but that really is a false issue. Why? Because, as any economist will tell you, if the demand for marijuana is here, and there is that much money to be made, someone will supply it. And if it is not illegal Mexican immigrants, it will be people like your next-door neighbor.

Marijuana has been illegal in this country since 1933, yet it is still fully available to anyone who wants it. And that includes our children, who report that it is easier for them to get marijuana than it is alcohol. And if you don’t believe me, ask them yourself.

Today, no one offers a free sample of Jim Beam bourbon or Budweiser beer on a high school campus. Why? Because if they were to get even close to doing that, they would be in a world of trouble. But illegal dealers offer free samples of marijuana and other illicit drugs to students on their campuses every day. Why does this happen? Because, just like with the La Brea fire situation, as soon as we prohibit a substance, we give up all of our ability to regulate or control it. That means that we concede all of the controls about quality, age restrictions, places of sale, price and everything else to the illegal dealers. And they are the ones who want to glamorize the use of all of these drugs and get our children hooked — so they can make more money off them. That is really stupid of us.

There is now pending in Sacramento Assembly Bill 390, which is being sponsored by Assemblyman Tom Ammiano from San Francisco. This measure would treat marijuana like alcohol in California, with the proviso that it would only go into effect 30 days after the federal law would be changed to allow this to occur legally. AB 390 would regulate and control the sale of marijuana for adults — and then tax it! That act alone would, according to the chair of the State Board of Equalization, bring in additional tax revenue to California of about $1.3 billion each year.

Today, marijuana is already the largest cash crop in the state, the seizures of those 225,000 marijuana plants this year notwithstanding, so this measure certainly will not make it more available than it is now.

But passing AB 390 will raise additional revenue for the state, while at the same time reducing the gross revenues of Mexican drug cartels by taking away their market.

And it will also reduce violence and corruption in this country, and, most importantly, make marijuana less available for children than it is today.

So what’s not to like? Accordingly, please call anyone you can vote for in Sacramento and urge them to vote for AB 390. This situation is far too dangerous to leave up to illegal growers and sellers.

JAMES P. GRAY is a retired judge of the Orange County Superior Court, the author of Wearing the Robe – the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2008), and can be contacted at or via his website at .

Tuesday, August 18, 2009

Hunters decimating shark population - by Judge Jim Gray

Recently, one of my sons loaned me a video titled “Sharkwater,” which was created by Canadian filmmaker Rob Stewart. The thesis of the film is that unchecked hunting is decimating the world’s population of most types of sharks. Regretfully, based upon my inquiries, he appears to be right.

Sharks are one of the most vilified and misunderstood creatures on earth. Much of this is probably traced to Steven Spielberg’s movie “Jaws,” which left the public with a mindset that sharks are aggressive and always on the prowl for humans. They may be in a frenzy if there is blood in the water, but otherwise, all indications are that this is simply not true.

It is true that sharks are the top predator in the oceans of the world. But the average number of human deaths caused by shark attacks is only about 10 per year — worldwide. And very likely, all of those are caused by the sharks confusing a human swimmer or surfer for a sea lion, or some of its other natural prey.

And, of course, when there is a shark attack almost anywhere, that is a sensational story that invariably makes the news.

On the other hand, it is estimated that humans are now killing sharks at the rate of about 38 million per year. And since a female shark averages only about 1.2 pups every other year, and it takes about nine years for a shark to mature in the first place, sharks reproduce quite slowly. This means that their ranks are being seriously depleted.

Does it matter? Although the sharks’ involvement in nature’s balance is more complicated and involved than I am able to discuss, my information shows me that it makes a sizable difference because sharks keep the population of other species in check. So if we have fewer sharks, then there will be more sea lions, that will in turn be eating larger amounts of other fish, and more otters that will be eating larger amounts of clams, etc. So man’s interference with the way of nature can have huge repercussions.

But since most shark meat is not particularly desirable, why are hunters killing them? The answer is in the sharks’ fins. Shark fin soup has long been considered a delicacy in Eastern Asia that symbolizes wealth and prestige, so, even though it has almost no taste, it is often served at weddings and other celebratory banquets. In addition, it is also considered to have medical benefits that can nourish the blood, invigorate the kidneys and lungs, improve digestion and even be an energy supplement.

So even though a bowl can retail for anywhere between $10 and $100, with the rise of the middle class in Eastern Asia in the last 15 years, the demand for shark fin soup has skyrocketed.

As a result, dried shark fin today can fetch a retail price of $300 per pound or more. That makes shark fin, pound for pound, the most lucrative substance taken from the sea, and turns this into a billion-dollar-per-year business. But because the meat is not particularly edible or valuable enough to transport, many hunters simply engage in the practice of “finning.” This means that they capture a shark, cut off and keep all of its fins, and simply throw the rest of the body back into the ocean.

Then, since they can no longer swim, the sharks sink to the bottom and drown or are eaten by other fish.

This problem is similar to the one in Africa in which poachers kill elephants only for their ivory tusks. And both of these are examples of what can happen when no one has any property rights to a particular resource, so one person will attempt to plunder as much as he can before someone else does.

Stewart’s film documents some illegal poachers engaged in the practice of finning off Cocos Island, which is a national park in Costa Rica, but the practice is also heavy in many other places as well, such as Indonesia and Western Australia. And since most of the finning occurs in international waters, the practice is as unmanaged and unmonitored as it is widespread. It is true that sharks are also killed by mistake in nets or baited hooks set out for other fish, but the major reason for the huge killing of sharks still appears to be finning.

So what can be done about this situation? The most effective results so far have come from the education of the public. In areas like Thailand and Singapore, in which advertising has increased public awareness of this problem, demand for shark fins has decreased by about 25%.

And when environmental groups made the decision-makers at Disneyland Hong Kong aware of what was going on, shark fin soup was taken off its menu. Stewart is even taking his film for screenings in China, which is one of the countries most involved in consuming shark fins, with the hope that he can influence public opinion there as well.

But each of us can also have an impact upon this problem by recommending shark fins not be served for any meal we are involved with, and encouraging our friends and family to do the same. So please spread the word.

JAMES P. GRAY is a retired judge of the Orange County Superior Court, the author of Wearing the Robe – the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2008), and can be contacted at or via his website at .

How does an airplane fly? Think about it - By Judge Jim Gray

As my wife and I in a few days are going to get onto an airplane and take off for a vacation, I again started wondering how an airplane actually flies.

To me it seems like an unnatural thing for a long and heavy canister with wings to be able to get off the ground and fly through the air. So I did a little research on the subject.

The three major factors of airplane flight are the engines that produce thrust, the wings that produce lift, and the flaps, elevators, and rudders that are used to control the direction in which the aircraft travels. All of those are probably self-evident, except for the concept of lift.

Many flat surfaces like a piece of plywood, a Frisbee, or even a flat stone, will glide for short distances on a fluid like air or water, and will even rise or dive, depending upon the wind and their angle of attack. But they will not produce lift. For that to occur, the objects must have a different configuration.

The next time you are around an airplane, or helicopter either for that matter, look at how the wings and rotors are formed. Their bottoms are basically flat, and go straight to the back, but their top surfaces are curved. This design forces the air on the top of the wing or rotor to travel farther than the air on the bottom during the same amount of time to reach the same spot at the back.

This is important because when the speed of a fluid increases, the pressure exerted by that fluid on the surface of a nearby object actually decreases. In our case, that means that there is more pressure pushing up from the bottom of the wing or rotor than there is pressure on the top pushing down. Therefore, assuming all other factors are equal, when pushed through the air the wings and rotors have a tendency to rise, or to produce lift.

This is Bernoulli’s Principle. Daniel Bernoulli was a Dutch/Swiss mathematician who lived from 1700 to 1782, and he discovered that as the speed of a moving fluid increases, the pressure exerted by that fluid decreases. And this principle holds true as long as the fluids flow smoothly and consistently, and are of the same density.

Furthermore, the more dense the air is with an airplane, the more lift will be generated. That means that the wings will generate more lift in cold weather than warm, because cold air is denser, and the wings will also generate more lift at sea level than at higher altitudes for the same reason.

As I understand it, this can be analogized to a situation in which people would throw large numbers of golf balls in many different directions inside a small container. The balls would spend a lot of energy bouncing into each other and onto the walls of the container, and that would generate higher amounts of pressure on those inner walls. But if the balls were all thrown in the same direction, the inner pressure would be reduced because the balls would not be hitting the walls or each other, and the faster they go, the less they would be inclined to hit anything.

So what about stunt pilots that fly their planes upside down? Why don’t the wings then “lift” the airplane toward the ground? The answer is that the pilots counteract the downward thrust from the wings by over-adjusting the elevators on the back wings of the plane, which changes the angle of attack by keeping the front of the plane higher than the back.

Another application of Bernoulli’s Principle explains why windows in houses tend to explode outward instead of implode inward during a hurricane. The reason is that since the winds are going so fast outside the house, there is less pressure outside the house than inside. That is why people who are knowledgeable about surviving hurricanes suggest that you open all of the windows in your house when one occurs.

I don’t know about you, but I think it is fun to understand the various phenomena that explain the everyday things that are all around us (For example, how does a flush toilet work?). Think about it; it’s interesting.

I also found it interesting to learn that eastbound aircraft are required to fly at an odd number of thousands of feet, and westbound aircraft at an even number. So, for example, eastbound aircraft will fly at 31,000 feet, and westbound will fly at 30,000. Obviously that regulation is meant to decrease the chances of head-on collisions.

Accordingly, as my wife and I get onto our airplane, we can be comfortable not only that Mr. Bernoulli’s Principle will still be fully engaged, but so will many other features that will increase our chances of a safe flight. In fact, studies show that airplane travel is about 20 times safer than automobile travel, as computed in deaths per passenger mile. (You probably know that the even-numbered interstate highways in our country generally go east and west, and the odd numbered go north and south. But that is just for convenience, and regretfully doesn’t have any effect on head-on collisions.)

So the odds are good that we will return safely from our travels, and you can look forward to many more installments of this column in the coming months. Happy summer travels to us all!

JAMES P. GRAY is a retired judge of the Orange County Superior Court, the author of “Wearing the Robe – the Art and Responsibilities of Judging in Today’s Courts.” He can be contacted at or via his website at .

Monday, August 17, 2009

Keep government out of the marketplace. by Judge Jim Gray

Ihave been pondering the answer to the following two questions for several years: First, what actually is the basic liberal philosophy? See if you agree with my answer. In general, the liberal philosophy is that “Government can best address — if not cure — the ills of the world by spending money.” (Of course, it is our money that the government is spending.)

And second, what is the basic conservative philosophy? See if you agree with my answer. In general, the conservative philosophy is that “We should have as small and non-intrusive a government as possible, which is basically one that will provide us with things like a military and police force, foreign policy, justice system, national monetary system, some oversight and regulating of the marketplace, and a few other nationally oriented things like that.” One of the rationales for that philosophy is that individual people are in a better position to make good decisions about how to spend their money than the government is.

Unfortunately, the recent administration of President George W. Bush abandoned that conservative philosophy when it failed to veto huge congressional spending, and even sponsored much of it. For as long as I can remember, conservatives have been chastising liberals as people who would “tax and spend.” But the Bush administration took that one big step further with policies that would “tax, borrow and spend.” And that is a big reason why our country is in such fiscal trouble today. Therefore, as a practical matter, the Libertarians are the only political group that has held true to the basic conservative economic philosophy.

So now one of the policies that the Obama administration and Congress are pursuing is the so-called “Cash for Clunkers” program. As you know, this program contributes $3,500 to $4,500 to people who trade in their old “clunker” automobile for the purchase of a new one. And the program has been so “successful” that it has gone through the first $1 billion of tax money, so Congress has now added another $2 billion to it.

Is this a good idea? If it is and it is actually working, maybe we should expand it to provide a subsidy for everything! (Hopefully, everyone will agree that this suggestion is preposterous.) I do agree that the program is taking older, more polluting and less fuel-efficient cars off the roads, and that, in a vacuum, is a positive development. But think of what this government interference in the marketplace is actually doing.

One thing is that it is taking people who are probably at the lower end of the economic ladder and putting them into more debt during these hard economic times. And the program is also encouraging (bribing?) people to purchase many new foreign cars, like Hondas, Toyotas, Hyundais and Kias. This results in our tax money being spent to help the economies of places like Japan and Korea. (Yes, I understand that some of the cars are assembled in the United States, but the underlying fact remains.) And even to the extent that they buy cars manufactured in our country, this comes on the heels of the government having paid billions of tax dollars in bailout money to General Motors and Chrysler Corporation.

As importantly, we must understand that everything is related, which is to say that things do not exist in a vacuum. So by encouraging people to purchase new cars, we are discouraging them from spending money on other things like movie tickets, haircuts and refrigerators. (Corporate welfare and other government subsidies bring on the same results.)

Indeed, from an environmental and economic perspective, wouldn’t society be benefited just as much or even more by encouraging people to purchase fuel-efficient refrigerators, air conditioners, dishwashers or toasters? Why just cars? And in many cases, wouldn’t it help people and the economy more by having the money spent on health insurance, trips to Yellowstone or a child’s education? Or why not encourage people to increase their savings, which could in turn be used as a basis for bank loans for capital improvements and business expansion?

Of course, the automobile industry lobbied strongly for the initiation and continuation of the clunkers program, but that just reinforces the old saying that if you are going to rob Peter to pay Paul, you can always count on the support of Paul.

So when it comes down to it, the conservative philosophy works more effectively for the benefit of the individual, as well as for society in general. That means that individuals really are in a much better position than government to decide how most effectively to use their money. And this in turn leads to the conclusion that government can best assist our people, as well as our economy, by getting out of the marketplace!

But there is something even more disturbing in what is happening today that must be faced and discussed. None of the major empires I can think of throughout history were conquered from without. Instead, they fell apart from within. Examples are the Roman, Ottoman and British empires. And all of this deterioration was facilitated by government overspending. Those governments extended their domestic and military spending beyond that which they could afford, and also increased taxes beyond the point that the taxpayers were willing or even able to pay. And it was their undoing.

Are we at that point yet? I do not have the answer to that question, but we should all be aware of the problem. Of course, even with all of this government borrowing of money, my generation will still be fine. But it will be our children and grandchildren’s generations that will be looked upon to pay for our fiscal irresponsibility. Shame on us all!

The fundamental truth is that when taxes get too high, people will move their resources somewhere else — out of the state or even out of the country. (Think of offshore banking in the Cayman Islands and elsewhere.) And when bureaucratic interference, costs and taxes pass a certain threshold, people will either move their businesses elsewhere, or simply be forced to close them down. Therefore, the “outsourcing” of jobs is only one of the logical or even economically mandated results of this situation.

So what can we do to keep from weakening our great country? As I have said numbers of times in this column, it is our government, and if government is not working, we have no one to blame but ourselves. That means that, if only for the sake of our children and grandchildren, we had better get more active and require our government to be more fiscally responsible. And the best place to start is to get it out of the marketplace.

JAMES P. GRAY is a retired judge of the Orange County Superior Court, the author of Wearing the Robe – the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2008), and can be contacted at or via his website at .

Monday, August 10, 2009

Ways to resolve our everyday disputes - by Judge Jim Gray

Looking back over my career as a trial court judge, I believe that the thing that brought me the most gratification was helping people to resolve their disputes voluntarily. In fact, in my current work as a private mediator I am still able to do that, so the gratification continues.

But upon reflection, many of the things that I do professionally to facilitate voluntary resolutions of disputes could also be utilized by everyone to resolve their daily disputes. So I thought I would use today’s column to pass along some of the tips that I have learned throughout the years, and I recommend you consider and employ them, and even discuss them with your children and grandchildren to help train them to be peacemakers.

One tool to use at the beginning of settlement discussions is to anticipate the moments in which people on one side or the other may get emotional or upset by asking questions like: “How should we handle it when. . . ?” Many times, settlement discussions are frustrated by these situations. But if you have anticipated them by asking this question, people will see the emotions for what they are, and be able to get through them.

Probably the most important tool in dispute resolution is listening actively. In fact it should not be considered to be an accident that the word “listen” has the same exact letters in it as the word “silent.” Not only will you receive important and often subtle information simply by listening to people as they set forth their grievances, you will also gain their confidence by showing that you are willing to consider their feelings and positions. So understand that there is a huge difference between the act of listening, and the act of simply waiting to talk.

In addition, sometimes people simply need to vent before any serious discussions can begin. So take the time to listen to them, and interrupt only with brief, clarifying questions. This will show them that you are listening and interested, but it will not interfere with the flow of their thoughts.

It is also important to focus upon the fact that the act of listening is not at all the same thing as agreeing. But seldom can disputes be resolved by people who do not understand the position of each side. Then once the person has finished, it can often be helpful to summarize in your own words what that person has said. This will help to put things into perspective, and also show everyone involved that you understand what the issues are.

At this point you can effectively bring up problem areas with each side’s positions by asking neutral but realistic questions. For example, if one person says that she loves to play Beethoven really loudly in her apartment because it is wonderful music that everyone should enjoy, and it really helps to calm her down, ask her how she would feel and react if her neighbor felt the same way, but instead played Bon Jovi? Or ask if she would be able to calm down just as successfully if she listened to her music with earphones. Questions like that are neutral, but bring up realistic problems and possible resolutions.

Once the discussions begin, never use dismissive or disparaging words about any of the participants or their positions, and do not allow anyone else to do so either. Some examples of these are: “Oh, I will just pay ‘nuisance value’ to settle the case,” or one person saying that someone on the other side is a fraud or a thief, or even calls the other party a “jerk,” “dirtbag” or “slimeball,” etc. If that happens, immediately interrupt and say that such words are counterproductive, off limits and not allowed. And be firm about it, because almost nothing will poison a settlement discussion like comments of this kind.

In more complicated disputes it is frequently helpful to ask each side to brainstorm and come up with one or more proposals that take each side’s interests into account. By engaging them in this process, it frequently brings the parties more to a realistic understanding of the problems, and also brings them closer together.

Several years ago I helped to settle what was probably the first Catholic priest child sexual molestation case in the country by not allowing anyone to discuss money at all. Instead, I asked the plaintiff and his attorneys, who were all Catholics, to adjourn to my jury room and prepare a list of institutional changes that they would suggest be adopted by both the Los Angeles and Orange counties dioceses that would seriously reduce the chances that this scurrilous alleged conduct would ever happen again. The plaintiff and his attorneys did so, and in about an hour emerged with a list of 10 suggestions.

Then I requested the church representatives and their attorneys to go into the jury room and consider and respond to those suggestions. When they emerged in about another hour, not only did they agree to each of the 10 suggestions, they actually added an additional one of their own.

At that point, I suggested a dollar figure to settle the case that was quite a bit less than plaintiff had requested, but more than the church had said it was willing to pay. Soon each side agreed to that number, and the case was settled. This approach enlisted each side to help address the fundamental problem, and helped to give them a vested interest in being a part of its resolution. The plaintiff realized that he could never institute these changes by going to trial, only by settling the case. And the church recognized that it could turn an enormously negative situation into something more positive. In addition, each side also received the gratification of knowing that this positive result was facilitated by their own suggestions.

A big secret tool in dispute resolution is to keep the parties slowly moving closer toward each other. And this progress can be about anything. In the example above, if the complaining neighbors simply state that they also enjoy Beethoven, that can disclose a common bond between them. And the more things people see that they have in common, the more likely they are to agree to a workable resolution of their disputes.

Finally, in my mediation efforts I often tell the parties that I am really in the “dissatisfaction distribution business,” and that is true. You will notice that in this discussion I have only used the word “resolution,” and not the word “solution.”

The reason is that most of the time the only things that have actual solutions are mathematical equations; human problems only have resolutions.

So when you are attempting to work with people and deal with their disputes, make sure they understand that probably nothing will make the situation perfect.

We only can do the best we can in an imperfect world.

But being a peacemaker is a skill that can be practiced and improved. And once it is employed successfully, it can bring to you about as perfect a feeling as you will ever enjoy.

JAMES P. GRAY is a retired judge of the Orange County Superior Court, the author of Wearing the Robe – the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2008), and can be contacted at or via his website at .

Friday, August 7, 2009

Have a dose of healthy skepticism - by Judge Jim Gray

When my children were between 5 and 8 years old, we happened to be driving south on the San Diego Freeway below El Toro when I saw a strawberry field that was covered in plastic sheeting and said, “Look kids, that’s where they grow plastic.” All three responded with words like “Really, Daddy, really?” I just kept quiet. And then, about 20 miles later, one of my sons said something like “Oh come on, that’s not true.”

I view that experience as one of the important lessons I have provided to my children, which is to question information, regardless of the source. Now, obviously, one cannot question everything at once, or there is no point of reference. But children should be taught to think about whatever they are told, no matter how much authority the provider of the information has.

So this is my 96th column in this Daily Pilot series. Included in prior columns are suggestions about how to address our nation’s drug policy, health care, illegal immigration, foreign policy about Cuba, educational system, justice system and more. I have recommended we as a country convert to the metric system and utilize transcendental meditation in our schools and prisons, and I have provided you with lots of facts and figures. Have you believed what I have said? Have you believed my statistics? I am a trial court judge who retired after 25 years on the bench. That is a responsible position, and I at least try to be objective. Do you simply accept what I tell you?

You shouldn’t. Not with me, and not with anybody else. I am not encouraging cynicism, just skepticism. Just because something is in writing does not mean it is true. Just because someone who has a responsible position in government, the media, the church or an impressive charitable foundation says something does not mean that it should be accepted without us applying our own sense of reason.

Everyone has biases, including judges. Judges try to recognize and correct for them, but that is not always possible. And people also have motives, with some of them being good, and some not. Why would someone create a computer virus that would cause lots of harm and needless expenditures to the rest of us? Who knows? People do things, and sometimes they are harmful. Why do some people commit arson by lighting mountains on fire? Some people are sick. But other people in responsible positions occasionally act in a similar fashion for lots of different reasons. We have the blessings of being in a mostly free society that allows us to never accept anyone’s information and conclusions by rote without our own verification. Just like my children with the field of plastic.

Is global warming actually happening? If so, is it related to actions by mankind? The CATO Institute in a recent advertisement lists about 100 scientists and educators from all around the world saying that the cause and effect relationship is anything but clear. So do some people have other motives underlying their attempts for developed nations to cut back on carbon emissions? Are there people in our government and elsewhere who have other motives for perpetuating the War on Drugs, our present system of government schools, or converting our private healthcare system into one that is fundamentally controlled by the federal government? It would not be hard to replace our failed immigration system with one that works. Is there a reason why our elected representatives in Congress only talk about changing it, but don’t actually do anything about it?

I don’t particularly have any more information than you do on these questions, although I do spend time thinking about and researching them. But honest skepticism should always be employed. Remember, William Randolph Hearst really did have some unstated vested interests when he printed numbers of untrue or greatly exaggerated stories in his newspaper chain about the supposed harms of marijuana. There also was a movie released in 1936 titled “Reefer Madness” that purported to show innocent high school students being lured to try marijuana and soon thereafter committing murder, rape and suicide as they descended into madness. No such thing has ever been known to have happened, but it was “on the screen,” so people believed it and acted upon it. Instead, they should have been skeptical.

So we should at least get a second opinion and maybe even a third, and think about every question, before we accept something important as true. As a judge, I was called upon frequently to determine who was telling the truth. How could I know? Actually, I’m sure sometimes I was fooled. It is true that sometimes people with beady eyes fidget, perspire and look furtively all around the room when testifying, but they still tell the truth. And others who are calm, self-assured, confident and smooth sometimes lie pathologically. I was trained to be aware of that, but I was also trained to look for biases and motives. We as voters and citizens should be similarly aware, and should similarly pass that honest skepticism on to our children and grandchildren.

Of course, there is also such a thing as “paralysis by analysis.” If we carry “I’m from Missouri” too far, we could all become Hamlets, and then we would never get anything done. So, like everything else, we should employ a balance. So use “Snopes” on the Internet to see if things are true, or a hoax.

But how do you know Snopes is true? Good question.

And by the way, where do they raise plastic?

JAMES P. GRAY is a retired judge of the Orange County Superior Court, the author of Wearing the Robe – the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2008), and can be contacted at or via his website at .