CHIEF JUSTICE GEORGE
BERNARD E. WITKIN
(1904 - 1995)
The Supreme Court of California convened
in the courtroom of the Marathon Plaza
Building, 303 Second Street, South Tower,
4th Floor, San Francisco, California,
on December 3, 1996, at 9:00 a.m.
Present: Chief Justice Ronald
M. George, presiding, and Associate Justices
Mosk, Kennard, Baxter, Werdegar, Chin,
and Brown. Officers present:
Robert F. Wandruff, Clerk; George Rodgers,
Walter Grabowski, and Harry Kinney, Bailiffs.
Good morning. We meet today to honor a friend
of the California Supreme Court and of the administration
of justice and the practice of law in California,
Bernard E. Witkin. I would first like to introduce
the members of the court. Starting at my far
left, Justice Brown, Justice Werdegar, and Justice
Kennard. To my immediate right is Justice Mosk
and to his right is Justice Baxter and then
Justice Chin. On behalf of the court, I wish
to welcome Mr. Witkin's wife, Alba, and other
This is, to our knowledge, the first time that
an individual other than a justice or staff
member of the Supreme Court of California has
been honored with a similar memorial session.
The court believed such a tribute was extraordinarily
well deserved, given Bernie Witkin's unique
place in the history of the development of California
law. Let me take a minute to note here that
I struggled a bit over the question about how
to refer to the man to whom we pay tribute today.
"Mr. Witkin" seemed to befit the solemnity
of the occasion, but it was not a form of address
often heard by anyone who spent time with Bernard
E. Witkin. Instead, he was Bernie to everyone.
My use of that name today is a mark of my affection
and respect for a man who at his most formal
referred to himself throughout his career as
B. E. Witkin, member of the San Francisco Bar.
Bernie's connection to this court dates back
to the earliest part of his career. In 1930,
he served as a legal secretary, now known as
staff attorney, to Justice William Langdon,
and to then Associate Justice Phil Gibson. While
he was serving at the court, he began expanding
his Summary of California law, which even then
was an incredible feat.
The speakers today will concentrate on many
aspects of Bernie's career. Nevertheless, I
wanted to mention that I am the first Chief
Justice and Chair of the Judicial Council since
1969 not to have available the sage advice of
Bernie Witkin as an advisory member of the Judicial
Council. Chief Justice Phil Gibson was first
to appoint Bernie, whose depth of knowledge
and unique perspective added immeasurably to
the council's deliberations for over 25 years.
I know I speak for the entire judicial council
when I say we feel the loss of his guidance.
It is now my pleasure to introduce my colleague,
Justice Ming Chin, who will speak on behalf
of our court.
Chief Justice George, distinguished Associate
Justices of the Court, Justice Epstein, Mrs.
Alba Witkin, family, friends, and admirers of
Bernard Ernest Witkin.
There is so much to say about this unique and
remarkable man. Governor Pete Wilson called
him the Guru of California law. Former Chief
Justice Lucas said that "[t]he Witkin summaries
of California Law made us the envy of the nation."
His good friend, Ralph Kleps, said that Bernie
was an individual who demanded "conspicuous
attention." Certainly everyone will agree
that his contributions to California law are
unique, powerful, and irreplaceable. He was
a teacher, a scholar, an adviser, a mentor,
and a good friend to generations of lawyers
and judges. He had a special place in his heart
for this court and its many distinguished judges
and lawyers who were privileged to know him
and to work with him. It is for all of these
reasons, and so many more, that we gather today
to celebrate the extraordinary life of this
For me, Bernie Witkin and California law have
always been synonymous. For a young law student,
the works of Witkin brought clarity where there
was confusion. For a young deputy district attorney,
Witkin on crimes and evidence lit the way through
the morass of criminal law. For a new civil
trial lawyer, Witkin on torts, contracts, real
property, and civil procedure were always close
at hand to map the way. But I was indeed fortunate
that the legal giant behind these great works
was also a close personal friend. I was privileged
to know the scholar as well as the man. I believe
that more than any other single person, except,
of course, the Governor, Bernard Witkin is responsible
for my appointment to this court.
In many ways, Bernie was like a second father
to me. Bernie and my father were alike in so
many ways. They were about the same age, grew
up during the Depression, came from immigrant
families, knew poverty and hard work. They were
both very bright, and yet warm and charming.
They loved the land and what it could produce,
particularly their orchards and gardens. They
were great storytellers, and they used the same
colorful language. They were both diminutive
in size, yet immense in stature. Even though
they are both gone, they will continue to influence
and to embrace my work and my life.
Only five days before he died, Bernie and I
had a long conversation. It was one of those
unusually serious conversations. Bernie did
all the talking, and I did all the listening.
He seemed to anticipate my appointment to the
Supreme Court. Of course, he then proceeded
to tell me what the court needed. It was only
30 days later that the Governor called with
the news of the appointment and to confirm,
as usual, that Bernie was right.
But even more important than his influence with
the Governor, Bernie tried to teach me over
the 30 years of our friendship everything that
a good lawyer and a good judge ought to be.
For instance, Bernie taught me the Witkin method
of legal writing. I can still hear him say,
"Write in plain, simple English, without
legalese, without arcane Latin, and without
footnotes." I'm still working on the footnotes.
He also taught me the importance of pure legal
analysis and logical organization. But Bernie
had many interests outside the law. For instance,
Bernie taught me to appreciate fine wine, as
well as the musical works of Gilbert and Sullivan.
Shortly before Bernie died, my wife Carol and
I were guests of Bernie and Alba for an afternoon
performance of the Lamplighters, followed by
a quiet dinner. Carol and I picked up Bernie
and Alba at their beautiful home in the Berkeley
hills. Bernie was getting physically a bit frail,
so I virtually had to carry him into our van,
but it didn't seem to bother Bernie a bit. He
bellowed one of those distinctive Bernie laughs,
and we were on our way. The entire afternoon
and evening he regaled us with famous Bernie
stories. Of course, I had heard them all before,
but that didn't make them less enchanting. It
was one of those wonderful evenings where you
return home with your stomach aching from laughter.
That was the last day I spent with Bernie.
Bernie and I also loved to watch old episodes
of Star Trek. One day last December, Carol and
I were at home watching Star Trek: The Next
Generation. In the middle of the movie, I leaned
over and said to Carol, "I wonder if Bernie
is watching." Later that evening, we received
the message from Alba's son that Bernie had
The next morning I awoke early and went out
to get the morning paper. I opened it to read
a wonderful tribute to my old friend. When I
finished, I looked up. It was one of those cold,
clear December days. The sun was just beginning
to peek over the horizon. It cast a warm glow
of reds and yellows across the morning sky.
I said good-bye to Bernie and thought to myself,
"Bernie is already up there, making everything
As I review Bernie's life, there is no doubt
in my mind he knew at a very tender age that
he was destined to influence history. Born in
1904 in Holyoke, Massachusetts, and growing
up in San Francisco, Bernie was raised in poverty,
and yet he had fond memories of his childhood.
From humble beginnings grew a unique and scholarly
individual who challenged the legal system and
created a whole new paradigm for legal and judicial
After graduating from the University of California,
Bernie entered Boalt Hall and soon commenced
his long career of distinguished legal commentary.
Bernie intensely disliked the Socratic method.
He thought law professors used it to bully students
and to obfuscate the law. Bernie even contemplated
another career until he took a bar review course
from a practicing attorney. "Instead of
concealing the law from us as the law school
did," Bernie recalled, "he tried to
tell us what it was." Bernie's belief that
bar review materials were, in his own words,
"preposterous!" led him to create
his own bar review course. He used his carefully
crafted and detailed bar review notes as a course
outline. This outline eventually became the
first Summary of California Law, and with that
work Bernie commenced his illustrious career
as California's preeminent legal scholar.
As a young lawyer, Bernie had an unquenchable
appetite for hard work, and it was not satisfied
with just teaching bar review courses and writing
his treatise. In 1930, he became a law clerk
to Justice William Langdon. Ten years later,
Bernie moved to the staff of Justice Phil Gibson,
who later became Chief Justice. The young Bernie
learned from the Chief Justice the importance
of keeping his personal opinions out of cases,
and it was this lesson that helped shape the
Witkin we came to know as the objective and
brilliant legal scholar. The Chief Justice recognized
Bernie's writing skills and mastery of legal
editing. In August of 1941, he assigned Bernie
the responsibility of drafting the new rules
Bernie completely overhauled California appellate
procedure. It was during this period that he
began his seven-year tenure as the court's Reporter
of Decisions. The hallmark of Bernie's years
as a law clerk and as the Reporter of Decisions
was clarity in writing and succinct legal analysis.
After leaving the court in l949, Bernie channeled
his considerable energy into a prolific legal
writing career marked by his profound love of
the law and his dedication to legal and judicial
education. His great promise as a student, as
a law clerk, and as the Reporter of Decisions
blossomed in splendor in his legal commentaries.
His treatises on California law enhanced his
recognition as a legal scholar, and in 1982,
Bancroft-Whitney established the Witkin Department.
Generations of lawyers and judges and even governors
were touched by Bernie's brilliance. But beyond
that, Bernie's simple yet thorough style made
the law understandable for all Californians.
Bernie's love of the law went beyond his legal
writing. He started the Foundation for Judicial
Education to provide continuing education as
well as benchbooks to California judges. He
was an advisory member of the California Judicial
Council. His contributions to the council continue
to influence our legal system and shape the
course of judicial education. We are all indebted
to Bernie for his willingness to participate
in numerous court-related events, including
meetings of the California Judges Association,
the California Supreme Court Historical Society,
and the CJER (California Judicial Education
and Research) new judges orientation. The California
Judicial College was recently renamed the B.
E. Witkin Judicial College.
We are deeply grateful to Bernie's family, particularly
to his dear wife, Alba, for sharing this remarkable
man with all of us. Her love, affection, and
caring for Bernie made it possible for Bernie
to continue to be part of our lives and our
profession long after most mere mortals would
have passed into the sunset of retirement. Of
course, Alba Witkin is an inspiration in her
own right. After Bernie's death, Alba invited
me to the announcement of the Witkin Institute's
formation. As she was making her remarks, the
woman next to me in the audience leaned over
and whispered, "She is so distinguished,
she reminds me of Eleanor Roosevelt." But
the Witkins not only mirrored the grace and
dignity of the Roosevelts; they also shared
their commitment to community. In 1982, Bernie
and Alba created the Witkin Charitable Trust.
Since then, they have donated almost $5 million
to over 200 charitable and community groups.
They have been benefactors to children, the
elderly, and the homeless.
Bernie Witkin was a California treasure. His
ideas and his unique body of work will continue
to teach, to encourage, and to mold future generations
of lawyers and judges in the Witkin tradition
of intelligence, simple elegance, steadfast
honesty, and good humor. Bernie was a unique
and remarkable man. We are sorry to lose him.
We shall miss him greatly. We feel honored and
blessed to have known him. We know in our hearts
that his spirit will never die.
CHIEF JUSTICE GEORGE
Thank you, Justice Chin. I would now like to
introduce the Honorable Norman Epstein, Justice
of the Second District Court of Appeal in Los
Angeles. Justice Epstein was a good friend of
Mr. Witkin's and for many years collaborated
with him in the writing and updating of the
second edition of the volumes of California
Criminal Law familiar to so many practitioners
Chief Justice and Members of the Court:
May it please the Court.
This is a unique occasion, to honor a singular
man. Bernie Witkin left us almost a year ago—a
few weeks short of the day. He died full of
years and full of honors unstintingly bestowed
by the people and the system of justice he served
for a lifetime.
He served this court, in particular, for decades,
beginning well over half a century ago. Alba
Witkin, his beloved wife, his guide, and his
conscience, will address you about his service
I would like to speak of him, for a few moments,
in a somewhat broader context.
Bernie Witkin was the Justinian of California.
But while Justinian caused the great code that
bears his name to be compiled, he did it with
the resources of an empire and a cadre of expert
scholars who did nothing else. Witkin did it
by himself. He started modestly enough, with
law school notes that evolved into a grand bar
review course. When he began there were typewriters.
In terms of automation, that was about it. Electronic
aids, let alone computer technology, were beyond
Buck Rogers. In fact, he began before anyone
had heard of Buck Rogers.
He took it upon himself to write nothing less
than a Summary of California Law: contracts,
torts, real property, equity, constitutional
law, tax, agency and partnership, negotiable
instruments, and more. Imagine the hubris in
undertaking a task so large at an age so young.
Only a law professor would even think about
doing it at any age. Bernie knew a large number
of academics, and was a close friend of many
of the best. But he never aspired to, and never
held, the title of professor.
The Summary was a success. It was followed by
series on procedure, evidence and criminal law.
Each was successful, and each was followed by
new editions as the supplements outgrew their
Bernie's works became so well established because
almost all practicing attorneys, and almost
all judges, used, cited, relied upon, and used
them again. What made them so special? After
all, there were such things as legal encyclopedias,
and specialized works on all sorts of subjects.
And there was that masterful work, the Restatement
of the Law, that is nationally authoritative
in so many areas.
Some works attempt to capture too much and end
up saying more than can be absorbed about a
subject. They drown it in words and citations.
Witkin's work is different. It presents a clear
statement of the law. As one of the legal portraits
of Bernie put it, he "lays down the law."
But he does it with supporting rationale, and
in context. When you read what he has to say
about a subject, you know the "what"
as well as the "why." And you see,
presented tersely but fully, the development
of the area. You see it in context with related
subjects. What you do not see is a superfluity
of detail. There is no underbrush of words;
no legalese. One would look in vain for the
usual "hereinbefores" and other amalgamated
words, or for Latin terms that have not worked
their way into the language. There is wit, but
no witticisms. And no footnotes. None.
The Witkin texts occasionally question precedent—usually
an elderly precedent ripe for review. They do
not "predict the law," although they
cite law review and other periodical comments
that try to do so. It is enough to state and
keep up with the enormous volume of law as provided
by those who make it by enactment and through
In a society governed by law, what greater contribution
could there be? Witkin's great gift is that
he enabled lawyers and judges—generation
after generation—to know and understand
the law, and to apply it in all its vastness,
its intricacy, and its majesty. It is not too
much to say—indeed, it is not enough to
say—that the profession, the bench, and
the society they serve are better for it.
Bernie was a paradox. His aversion to traditional
Socratic teaching is well known; it almost did
him in during his own law school career. Yet
he became one of the greatest and most quoted
legal scholars of his age. He never used a computer
or any of the newfangled devices that most of
us can no longer live without. But he was a
futurist, with a clear vision of the demands
that would be placed on the legal and judicial
systems in the years ahead. He demonstrated
that vision during his decades of service as
an adjunct member of the Judicial Council, the
CJER (California Judicial Education and Research)
governing committee and, more recently, as a
member of the 2020 commission. He could have
had more degrees than a thermometer, yet the
only title he ever used—and it appears
in all his books—is "B. E. Witkin
of the San Francisco Bar." For a great
deal of his life he worked without a staff.
But he came to recognize mortality and trained
a superb body of lawyers at Bancroft-Whitney
to write (as he said) as well as he. He did
not serve as a member of any court, yet he is
honored today by this great court.
I was particularly privileged to work with him
and to know him well during the 16 years that
I co-authored one of the Witkin treatises. It
was the richest experience I have had.
Bernie was easy to talk to, as thousands of
lawyers and judges came to know. He could put
over a story as no one else could do. His robust
humor, which included balancing objects on his
head while being otherwise nonchalant, and that
patentable two-note laugh, are well known. To
many, so is the hospitality of Bernie and Alba.
And, more recently, so is their generosity.
The generosity is not new; it is just that neither
Bernie nor Alba sought recognition for the gifts
and grants they bestowed—for legal education,
for the arts, and in so many other areas.
He virtually created formal judicial education.
What is now acknowledged as the finest, most
comprehensive judicial education program in
the nation was founded by him and a handful
of others. It was endowed by him, and firmly
supported by him for the rest of his life. It
remains one of his monuments.
There will not be monuments in the sense of
statues and the like. Some legal institutions
will bear his name (as the Judicial College
does now). But his monument is in this chamber
and wherever a California court sits. It is
all around us. And it will endure.
CHIEF JUSTICE GEORGE
Thank you Justice Epstein. Next, it is my great
pleasure to introduce Mrs. Alba Witkin, Bernie's
wife. Throughout their marriage, Mrs. Witkin
served as an essential component, not only in
supporting her husband in his work and appearing
with him at events up and down the state of
California, but also—as noted by Justice
Epstein—in managing the Witkin Charitable
Trust, an extraordinary fund that has quietly
and effectively contributed to a wide range
of legal and other causes.
morning. Thank you for honoring Bernie in this
very singular fashion. In his wildest dreams,
I don't think Bernie would have imagined that
the Supreme Court would have done this for him.
But he would have liked it, and in his immodest
humility, I think he might even have thought
he deserved it. I know that it is in part because
of his contributions to the legal community,
but more so, because of his years of service
to the Supreme Court that you are honoring him.
And I am very grateful to you for that.
For 65 years, he knew each and every Supreme
Court member. The media used to ask him about
the Supreme Court members, and so, after a time,
he did the "state of the union" address
about the Supreme Court. He would give this
speech to various legal groups, and they were
always glad to hear his humorous and witty interpretations.
Over the years after he left Supreme Court employment,
he continued, as you know, his relationship,
his very serious relationship, to the Supreme
Court through the Judicial Council, as an advisory
member. He was very happy to do this because
he was always very concerned with everything
that had to do with the legal system.
I think one of the most important roles that
he served was when he gave his historical perspective
to all of the things that he was asked about.
He would sit quietly, I know, at most committee
and Judicial Council meetings, but when asked,
he could explain a great deal. His incisive
mind, his memory, which was prodigious, could
always produce a total review of everything.
But most important, it was as this elder statesman
that he served an important role. He could,
when asked about any particular event or any
particular case, speak about every detail, every
fact. And so it was this total view that he
was able to give. Where he might not remember
what he had eaten the night before for dinner,
he could recall in detail things that had happened
30, 40, and 50 years ago.
I know that you all have been told that he was
outstanding in another regard—that is,
as the father of judicial education in starting
CJER (the Center for Judicial Education and
Research). He was on its governing board for
years until his death. He spoke at every summer
college and, of course, now the college is named
after him, and I think very aptly so.
He also spoke to every judicial orientation
class that came, the class of new judges, except
if he were out someplace else in California
or in the nation speaking.
You have heard from Justice Chin a very thorough
and beautiful report of his life, and you have
heard from Justice Epstein about the particulars
of his legal writing and his legal career and
his professional life. I thank you very much
for what you have done for his memory today.
And I thank you also for the warm friendship
that you have extended to me because of your
love for Bernie. Thank you very much.
CHIEF JUSTICE GEORGE
Thank you for those warm words, Mrs. Witkin.
I want to thank again all those who have contributed
their eloquent remarks to today's proceedings.
In accordance with our custom, it is ordered
that this memorial be spread in full upon the
minutes of the Supreme Court and published in
the Official Reports of the opinions of this
court, and that a copy of these proceedings
be sent to Mrs. Witkin. In addition, it is ordered
that the transcript of the memorial proceeding
held in honor of Bernard E. Witkin in Berkeley,
California, on January 13, 1996, also be spread
in full upon the minutes of the court and published
as an addendum to these proceedings in the Official
Please Continue to page 2: A
Memorial to B.E. Witkin - Berkeley, California:
January 13, 1996
return to page top