In Memorium 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.

CHIEF JUSTICE GEORGE: 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 friends.

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.


JUSTICE CHIN: Mr. 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 exceptional man.

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 died.

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 better."

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 education.

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 on appeal.

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 and jurists.


JUSTICE EPSTEIN: Mr. 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 here.

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 parents.

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 judicial construction.

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.


MRS. WITKIN: Good 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 Reports.


Please Continue to page 2: A Memorial to B.E. Witkin - Berkeley, California: January 13, 1996


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