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.

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!

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.

It is truly amazing how our Long Beach office, the California branch of the prestigious firm of Smith & Garg of Houston, has developed and flourished in the course of three short weeks. The relentless work of Brian Smith and Mark Wright, with the cooperation of the three associate attorneys, John, Angela and myself, who have also been practicing law in the interim, as well as of Melissa Nevarez at the front desk, and the ever surprising and witty Thuong Pham, who is putting together our software programs and was instrumental in hooking up the computers, all this effort is now blossoming into the vertiginous dynamic of a fully functioning firm.

Not three weeks ago, upon my first arrival at what would evolve into being the office, we had two or three desks scattered about in rooms without carpeting and without electricity. The contrast is quite remarkable. We are now contacting support professionals and presenting ourselves as an established Long Beach law firm, which indeed we are. Our retainer agreements, correspondence and business cards are spreading into the community, even as our presence in cyberspace continues to increase and dazzle.

What causes such Faustian energy? Leaving aside such facile answers as, one could say, Brian’s soy milk cappuccinos, I would venture to say that it is the will to serve a public, to conquer a particular market, to better establish and secure an enterprise. I am not given to facile optimism, yet I cannot but see that we have a great future ahead of us. It perhaps could be said of us, what the great Athenian general Themistocles said of himself in the fifth century BCE: “I cannot fiddle, but I can build a great empire from a little city.” Here, we do not fiddle, but we shall build a great firm out of small beginnings in our Long Beach office.

 
In 1988, the California Supreme Court eliminated a third party plaintiff’s ability to sue his insurance company on grounds of bad faith.  The case of Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287 held that no private cause of action could be maintained under California’s Unfair Practices Act.  (Ins. Code, § 790 et seq.).  Moradi-Shalal demonstrated that as a matter of statutory analysis, it is wrong to conclude that the Unfair Practices Act was intended to include private causes of action.  (See Moradi-Shalal v. Fireman’s Find Ins. Companies, supra, 46 Cal.3d at pp. 297-301.) Under the provisions of that Act, a third party plaintiff who was roughly handled, in some manner that could be argued to be unfair, by the insurance company of the adverse party, had recourse to the courts in what amounted to a second trial on the facts to establish whether the insurance company had acted in bad faith by denying the claim.  This private cause of action was henceforth no longer available. The underlying object of Moradi-Shalal was to stem the tide of threadbare personal injury cases, mostly based on low impact automobile accidents that constituted the bread and butter of the plaintiffs’ bar.  I cannot describe in this short paragraph vividly enough the devastating impact this ruling had on the plaintiffs bar in California during the decade of the late eighties and early nineties. For, once the plaintiff’s counsel in a fender-bender case no longer had the power to threaten the adverse party’s insurance company with a second lawsuit to review the outcome of the first, she was forced to try every one of these little cases before increasingly skeptical juries. The settlement monies dried up.  The result was a dramatic reduction in plaintiffs’ filings.  The effect of the ruling was twofold:  the Court threw away the baby with the bath water, as many low impact cases cause long-lasting and crippling injuries and disabilities to many people whose claims are now routinely denied, particularly if the plaintiffs are members of a minority group.  As well, because of the chilling effect on the plaintiffs’ bar, it handicapped the bar’s ability to fund riskier and costlier cases with the income it received previously from the settlement of low impact cases.  In the greater Los Angeles area, automobile collisions occur in the dozens every day, and the number of low impact claims is therefore enormous.  This has not changed to date, in fact it has increased, but most low impact cases are now making their way to Small Claims courts, including the meritorious ones, and the riskier big ticket cases are prosecuted with a lack of funds.  In fact, there is an increasing reliance on loans that handicap the eventual prospects of the case.  The chill on the California Plaintiffs’ Bar continues.

By way of introduction, I note that I have spent a lot of my life studying Law and History. It has been a happy marriage of disciplines. Justice Oliver Wendell Holmes famously said as follows: “The life of the law is not logic, but experience.” The life of the law is its history, and in History lies the life of the law. As opposed to the Latin American countries, and at least one state of the Union, Louisiana, our law is based largely on precedent. Laws have a life in history, and they change on a daily basis, by way of the innumerable rulings and decisions of the courts. Every time a lawyer searches for the appropriate rule of law in a case, she is undertaking the task of an historian. She must seek out the history of every law to make sure it is still valid, and to ascertain that the earlier sets of facts coincide in some manner with those of her own case. Conversely, an historian also must act as a lawyer. He must always make a case, which is to put forward a thesis sustained and argued on the basis of fact. When an historian marshals information to support his case, he is undertaking the task of a lawyer. It is a perfect symbiosis of two very different approaches, serving two very different professions, but on the basis of a common technique.

I post this to introduce myself and my firm to colleagues and prospective clients, and to forecast my overall comparative and eclectic approach to legal practice. For every set of facts in my particular field, for example, I develop an advocate’s brief to support my client’s position, the challenge being to find the precise rule of law that will uphold the argument of that brief. Every case, from its inception, must be prepared as if it was being readied for presentation to judge and jury. Discovery will then be governed by the evidence required to make that argument. To repeat: I have found that the marriage of law and history is a most convenient and useful one. Call me a fool, but I’m still happy. I cannot envision a divorce!

The Chapel was commissioned in 1964 by John and Dominique de Menil, wealthy patrons of the arts from Houston, for the specific reason of having the great New York artist, Mark Rothko, paint what are now called the ‘murals’, although they are not technically that. They are huge, dark, oil canvasses. The Chapel was meant to be a non-denominational place of worship, but it turns out to be a small temple for the worship of the best of Modernist Art. It was dedicated in 1971.

The Chapel is a, seemingly rectangular, brick structure, with a small bronze door situated in a large park. As you walk in, there is a desk with staff selling some publications and postcards, but the visit free. You then walk through a glass door into an octagonal interior. It is not that large, and there are a few benches to sit on. The walls, what you can see of them, are all gray concrete, but the amazing thing is the enormous canvasses that hang on every wall and seem to occupy the whole space. These are the Rothko paintings.

When you first walk in, they all seem to be the same color, apparently black. They appear to be of a uniform darkness, and they are totally abstract. Their darkness is intense and monotonous. Shortly, you realize that some are black, some are slate black, and some are dark purple and/or very dark blue. Gradually, you begin to see that the paintings to the front of the chapel, and those to the sides, are three-panel tryptiches, whereas the panels in between are two large individual canvasses, and they are not quite the same. The individual canvasses are dark purple, the side tryptiches are slate black, and the front tryptich has two dark black side panels and a central purple panel. The panel behind you, as you walk in, has a large area of dark brown at the bottom, and the slate black tryptiches are bordered by dark brown as well. The initial discovery is the purple, which emerges from the darkness. You realize that all are not black. When you see the different colors, colors that are not to be found in nature, as they are very complicated and highly crafted super-impositions of color, and very richly mixed, the whole place begins to get interesting. And then, the longer you look, and the longer you sit there, you gradually begin to see the brush strokes, the patterns of painting, the work of the artist.

Within the chapel, there is an oppressive silence, except for a slight humming sound -the air-conditioner that preserves an optimal temperature for the canvasses and oils in Houston weather -, and that sound makes the experience even more eerie. But as the colors and the brush strokes begin to emerge from all of this darkness, you realize that what the paintings tell you is something human. You begin to see the subjectivity of the artist, the typically modern escapism of absolute subjective idealism. Within the darkness, there is a human mind at work. There are brush strokes, and the activity of the artist’s crafting becomes visible, though barely. The pattern of color arrangements, the organization of the canvasses and their location, are gradually perceived by the viewer, as a surprising discovery, to be the result of human design and organization. It’s not just black paint on the wall. The darkness and impenetrability of the canvasses begin to acquire a meaning. These were the last paintings Rothko did before he committed suicide. They are as heavy with the presence of death as is the last symphony of Tchaikovsky, or Beethoven’s late quartets. It is the death of subjectivity, which, for the artist, is all that there is. What you begin to sense very keenly, or at least I began to sense thus, is the empty feeling around you of an unseeable God. You are in a Chapel, but God is not there, and only a human subjectivity is there. The attempt of the artist, it would seem to me, is to replace God with Art. Schiller said that you can see the thing in itself, the truth behind perceived things, only in Art. I think Rothko might in that sense have been trying to depict Death in these canvasses, as a truth that only he could see clearly because of its proximity to him. The effect in the viewer, or at least this viewer, as he sits there in contemplation, in this humming silence, is to search for God in the paintings, and, as I say, God is unseeable in them. All you see is human subjectivity; the alone-ness of the human subject. That was my feeling when I left here. I thought that, if this Chapel was intended to be a place of worship, it left open the question of what it is that you are there to worship.

But Art says different things to different people. Many local residents use the Chapel to meditate, and they seem quite happy. So go and see it. It is a masterpiece of Modernist American art, one of the few, and it’s in Houston!