Albert Sonntag’s Legal Blog

The trial as drama

Prospective jurors usually come to court with a mind-set determined by criminal cases.  Who is the hero and who is the victim?  Which side represents whom?  And their job is therefore regarded as consequently simple:  finding in favor of the victim or hero and against the villain.  They are not impressed with alternative arguments.  Accordingly, the lawyer is left with little option but to develop a theme of the case that includes identifiable heroes and villains.

This occurrence has been previously investigated and discussed in various publications.  William Hangley, for example, wrote and article in the Fall 1998 issue of Litigation, wherein he describes the trial as a dramatic production and a morality play.  According to Hangley, even before any of the witnesses is called in to testify, the lawyer has functioned as a producer, director and stage manager of this production.  Hangley, ‘Direct and the Director: Writing, Staging, and Telling the Story,’ 25 Litigation, 20 (Fall 1998).

 The object of the trial attorney is to attempt to distill an entire story into a series of statements which are delivered to the jury at the commencement and at the end of the trial, as well as staging the performance of the witnesses to corroborate the statements.  This narrative must be so designed as to seduce the jurors into accepting the attorney’s version of the story, as there will be a competing narrative, presented by the other side.  The narrative must have a hero and a villain, and the audience, in this case the juror, must learn what happened to them and in short order proceed to praise the hero and vilify the villain.

Even the most complicated drama can be described by a short plot summary, which is typically just a few lines long.  This is the purpose of the opening statement, at which time the attorney will also provide the jurors with a dramatis personae, a listing of the main characters in the play, and a preview of the evidence that will be presented to them.  The plot summary will tell the jurors what the story is about, as well as introduce the heroes, the victims and the villains of the piece.

 This summary can typically be given in a very few declarative sentences.  For example, the following is such a summary of King Lear:  A tragedy by William Shakespeare about an aging man who places all his power and trust on two of his daughters, while banishing the third, and is cast out and humiliated by them, requiring to seek the protection and help of the banished child.

 The very short summary identifies the victim (Lear), identifies the villains (the two elder daughters), and the heroine (the banished Cordelia), and explains the plot (an old man who became old before he was wise) in a simple and straightforward manner.

 The simple theme of a civil wrongful death case, for example, would be as follows:  The plaintiff and his family were riding back home from Mexico when the blow-up of a defective tire caused their poorly designed and hazardous sports utility vehicle to roll-over and kill the driver as its roof caved in.  This theme identifies the victim (the driver) and the villain (the manufacturer of the vehicle and of the tire).  The jury does not hear of inconsistent defenses and legal terminology.

 Virtually every case worth trying, no matter how complex, has facts that allow each side to present itself as the hero and the victim of the other side’s misconduct.

A good theme should, therefore:

- Have both a hero and a villain, with the client the hero and the adversary the villain.

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 -  Describe a single outcome and a single cause.

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 -  Avoid alternative theories or explanations.

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 -  Seek to establish a thematic scheme of attack, not just to avoid the claims of the opponent.

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 -  Be a framework for viewing all of the evidence, no matter how complex.

    Smith & Garg’s effective and well-trained litigators will serve to prepare your case for trial in the most effective and aggressive way possible, based on many years of experience in the courtroom.

Cold War not yet over in California

This year saw an attempt on the part of the California Legislature to abolish strictures imposed on teachers and professors at State educational institutions, as well as public employees who hold allegiance, in some manner, to the Communist Party.  Although Senate Bill 1322, sponsored by Senator Lowenthal of Long Beach, passed both houses of the Legislature on August 4th and 5th, 2008, Governor Schwarzenegger vetoed the bill in September.

 Under existing law, a permanent or classified school employee, or a classified community college employee may be suspended or dismissed from employment for known membership in the Communist Party.  As well, under existing law, a public employee is required to answer, under oath, specified questions regarding known membership in an organization advocating the forceful or violent overthrow of the U.S. government, or the government of any State.  (This awkward provision reflects outdated Cold War thinking, as the various organizations which could be considered to fall under the umbrella of Communism differ as to their strategy with regards to the overthrow of governments.  Not only did the old Communist Party USA not advocate the overthrow of the U.S. government, but it endorsed Richard Nixon in the general election of 1972).

The bill would have deleted provisions that a permanent or classified school employee, or a classified community college employee may be suspended or dismissed from employment if he or she is a knowing member of the Communist Party.  The bill would also have deleted existing provisions regarding oaths exacted of public employees.  This bill would have required that a public employee or applicant seeking public employment be permitted to decline to take and subscribe to the oath of office based on religious beliefs that conflict with his or her ability to take and subscribe to the oath without mental reservation, provided that he or she is otherwise willing and able to uphold the United States Constitution and the constitution and laws of this state and to complete the duties of employment.

The Legislative history of SB 1322 shows that the California legislators were very aware of the fact that existing legislation lags somewhat behind the times.  Thus, clearly:

“SECTION 1. The Legislature hereby finds and declares the following:

(a) From 1946 to 1991, the United States of America was locked in a precarious and potentially deadly “Cold War” with the Soviet Union.

(b) At the height of the Cold War, California responded to the perceived threat of a Communist takeover and enacted a number of statutes subjecting members of the Communist Party, or others who refused to testify against themselves under oath, to termination of employment.

(c) Though Communists who attempted to harm the United States and collude with her enemies during the Cold War were prosecuted for their actions, many innocent persons suffered due to nothing more than their personal political convictions or relationships.

(d) Although the Cold War is long over and the threat of a communist takeover of the state or federal government no longer exists, these statutes remain current law.”
Well, as the Governor has vetoed the bill, and there seems to be no intention of introducing it again, the statutes still remain current law.  The Cold War is still on in California.

Experienced civil litigation attorneys at Smith & Garg will undertake to prosecute any case falling within First Amendment protections.

Refusal to return engagement ring could be breach of contract

 If you’re thinking of tying the knot and decide to buy an engagement ring for your fiancee, you may get it back if the engagement fails due to no fault of your own.  Conversely, if you receive a ring on your engagement, you will have to give it back if the engagement fails, unless the donor is responsible for the breakup.  California Civil Code, Section 1590 is quite explicit on the matter:

            “Where either party to a contemplated marriage in this State makes a gift of money or property to the other on the basis or assumption that the marriage will take place, in the event that the donee refuses to enter into the marriage as contemplated or that it is given up by mutual consent, the donor may recover such gift or such part of its value as may, under all of the circumstances of the case, be found by a court or jury to be just.” 

It has long been the law in the State of California that the donee of an engagement gift is not entitled to retain possession of it when the marriage contract is breached without any fault on the donor’s part.  Simonian v. Donoian (1950) 96 Cal.App.2d 259, 215 P.2d 119.  But note that the law makes no mention of what happens when the donor himself dissolves the engagement.

In effect, the law treats the transaction as a contract for which consideration is proffered.  If the donor breaks up the engagement, he has given no consideration for the return of the ring, and hypothetically would lose the right to repossession.  Conversely, the donee has a right to retain the consideration given by the donor to bind the donee to his or her engagement.

Caveat emptor!

Cy Twombly, Untitled, 1970 (Menil Collections, Houston)

The practice of law requires the frequent use of reason, and I say frequent because it is not necessarily a constant. There are times when empathy and intuitive understanding become more useful than the steel trap of reason. I can think of many examples, but I leave them for a future blog article. However, I felt the lure of unreason when I first saw the Cy Twombly painting shown above in Houston, in 2005.

The painting is part of the Menil collection near the Rice University campus. The collection has dedicated a whole building exclusively to the work of Cy Twombly. I think that he will soon be considered to be one of the two or three greatest artists of the second half of the twentieth century, rivaling Mark Rothko and Robert Rauschenberg. He will loom above the other artists as Paul Klee and Picasso loomed over the artists of the first half of the century. The reason I think so is because, being a very conservative painter, he kept alive the tradition of the great American movement of Abstract Expressionism while at the same time addressing the Post-Modern school of Conceptual Art. He tried to keep alive Abstract Expressionism in the sixties, when it was under attack by both post-Modernism and the red hot images of Pop Art. By spanning the entire period, he hovers above history and style.

I think you can see this in the painting I attach, which, of course, is only one instance of his voluminous and ever changing work. This painting is acerbic in its austerity and dryness, and has none of the sensuality of some of his other paintings. It’s a huge canvas. The more you look at it, the more spooky it becomes. At first I thought I was seeing the kind of mad scribblings that kids do on blackboards with chalk. It looked like a blackboard in school that needs to be erased before the teacher walks in. But then I began to see the black background with the flecks of white and the occasional outbursts of nebulous white that resemble the outer galaxies in space. I felt like the whole night sky was behind the scribblings. The three lines of scribbling began to be visible against a background of infinite outer space. And at that point I began to see the scribbles as the outburst of human culture in its pretentious being, against the endless expanse of the dark and mysterious universe which is all around us and overwhelms us, not only in space but in time as well. If you look at the top left hand corner, the first line of scribbling almost seems to be an effort to write something in human letters (I can read an a-e-e), in the calligraphy of human childhood, the beginnings of a sentence. But then as you follow the lines, it all becomes madness, the second band of scribbling being larger and more inchoate than the first, and the bottom band of scribbling, larger than the others and more irrational and even more meaningless. And then, the human lines, the human cultural outburst, the mad scribbling, begins to look ridiculous against the background of an infinite unknown immensity.

It is an abstract painting, but it addresses some of the concerns of post-modernism and its notions about the end of Meaning in art and life. It is the dialogue with Mr. Natural in the R. Cobb comic strips of the sixties: “‘What does it all mean, Mr. Natural?’ - ‘It don’t mean shit!’”

To a being from outer space, an alien, that is probably what human culture would look like. A busy signal, signifying nothing, meaning nothing, and getting ever more out of control.

Nietzsche said, “I was born in the battlefield of Luetzen.”  I would like to explore a little bit why he said that.

The battlefield of Luetzen is indeed in the place where N. was born.  The town of Roecken is located on the road to Leipzig and in the middle of the big plain that was the site of the battle.  In 1632, the Catholic Empire, based in Vienna, had been fighting the Protestant princes for about eighteen years, in the course of what is known as the Thirty Years War..  A long ugly war, fought mostly in what is now Germany, armies going back and forth, depleting the countryside of its wealth and burning down the cities, a war between the Empire and the upstart protestant princes and independent cities.  Then, picture this, the Swedish army, all clad in iron, with their blond hair close cropped in the manner of Oliver Cromwell’s Ironsides, this fearful army, under the leadership of the Swedish King Gustavus Adolphus, crossed the sea and came into Germany to fight on the side of the Protestants.  It is quite fascinating.  The Catholic imperial armies, led by the great general Wallenstein, who is a subject of one of Schiller’s great plays, ‘Wallensteins Tod,’ was encamped in Leipzig, as the following excerpt from Wikipedia explains:

>>>Two days before the battle, on November 14th (in the Gregorian calendar, 4th in the Julian calendar) the Catholic general Wallenstein decided to split his forces and retreat his main headquarters back towards Leipzig. He expected no further move that year from the Protestant army, led by the Swedish king Gustavus Adolphus, since unseasonably wintry weather was making it difficult to camp in the open countryside. Gustavus Adolphus, however, planned otherwise. On the early morning of November 15 his army marched out of camp towards Wallenstein’s last-known position and attempted to catch him by surprise. But his trap was sprung prematurely on the afternoon of November 15, by a small force left by Wallenstein at the Rippach stream, about 5-6 kilometres south of Lützen town. A skirmish delayed the Swedish advance by two or three hours, so that when night fell the two armies were still separated by about 2-3 kilometres (1-2 miles).

What followed was a lot of carnage in the mud, and on November 16, 1632, Gustavus Adolphus was killed in the battle.  The Protestant cause was successful in battle but was hurt by the loss of the King. Again, from Wikipedia:

>>>It was a grim fight, with terrible casualties on both sides. Finally, with dusk falling, the Swedes captured the linchpin of Wallenstein’s position, the main Imperial artillery battery. The Imperial forces retired back out of its range, leaving the field to the Swedes. At about 6PM Pappenheim’s infantry, about 3,000-4,000 strong, after marching all day towards the gunfire, arrived on the battlefield. Although night had fallen they wished to carry out a counter-attack on the Swedes. Wallenstein, however, believed the situation hopeless and instead ordered his army to withdraw to Leipzig under cover of the fresh infantry.  

>>>Strategically and tactically speaking the battle of Lützen was a Protestant victory. Wallenstein was forced out of Saxony where he had hoped to winter his troops at Saxon expense, and retreated to Bohemia. Having been forced to assault an entrenched position Sweden lost about 6,000 men including badly wounded and deserters. The Imperial army lost perhaps 3,000-6000 men.

  And here, on this blood soaked earth, many years later, Nietzsche was born, and he was proud of it.  Why?  What would make him be proud of having been born upon a battle field that saw the death of Gustavus Adolphus?  Why would he have bothered to note that he was born on a battlefield at all, regardless of who won or lost?  What martial thoughts were conjured up in him when he proudly stated he had been born upon a famous battlefield?  Was it perhaps that he felt his whole life had been a battle and that he, having been born in the blood-soaked earth was destined to be a soldier all his life?

 All of which leads me to my point:  Nietzsche should have been a litigation attorney.  Why else would he have felt that his life had to be a constant war?  Well, it’s silly for me to ask that since I already know why.  And hence I know why he so proudly said that he had been born on the battlefield of Luetzen.