Albert Sonntag’s Legal Blog

What listening to Maria Callas taught me about the practice of the Law.

Maria Callas was not the greatest singer in recorded musical performance, nor did she possess the most beautiful voice.  But she was the most dramatic singer, the best actress singer, in all of the recorded history of musical performance, and because of that she was the best Opera singer.  Opera demands acting, performance, and not just singing.  Maria Callas understood very well that she needed to be an actress in order to be a great operatic singer, and she accordingly used her dramatic personality to its utmost in re-creating all the great heroines of Opera.  She was the perfect Norma, whose aria “Casta Diva,” she made famous as the chaste priestess of Diana.  Her Carmen was demonic, and she was an impassioned Leonora in the recordings and performances of ‘Il Trovatore.’  She was also a flirtatious Musetta in ‘La Boheme,’ and a teasing Rosina in “The Barber of Seville.”  Her Aida is intensely dramatic, particularly evident in the brief but desperate exchanges with her father, Amonastro.  For she was as great in the ordinary narrative and recitative parts of the opera as she was in the great arias, precisely because she was such a wonderful dramatic actress.  Her voice, which ranged from the most strident soprano, to the bel canto, to very low contralto, was most dramatic as it raced from one extreme to the other over vast arpeggios.  She spoke of singing Medea at the ancient Greek theater in Epidauros, and feeling the drama of ancient Greek tragedy coming up to her from the flagstones under her feet.

What’s all this have to do with the practice of the law?  It does in that the practice of the law requires drama.  Lawyers are primarily actors, and only secondarily lawyers.  The law is more the manner in which the lawyer argues it than it is the cold logic of the text.  In the Common Law, the law was not even written down for most of its early history.  The lawyers in this tradition were not meant to simply parrot the law, but to argue it as advocates for either plaintiff or defendant, a petitioner or her respondent, a prosecutor for the People or counsel for the accused.  The lawyer becomes his client in argument, leaving it for the judge to decide.  Thus the lawyer is always acting, pretending to think like his client, having adopted the client’s argument as his own.  We are not judges in court, but advocates for or against a cause, and we must act accordingly.

Before a jury, the lawyer becomes almost exclusively a performer.  All of the tricks of the actor are put to use, and there is even an appropriate intonation that is adopted, which makes the lawyer almost perform as an opera singer.  This is well known.  But the probate attorney is also an actor, at his desk, when he interviews a client, the corporate lawyer in the boardroom, the criminal defense attorney in his client’s cell, they are all performers.  The lawyer must know how to conciliate, how to encourage, how to decide for a client when the client requires it.  It is a constant dance on the stage, a skillful performance which lawyers, since time immemorial, since the days of the Sophists, have played for the benefit of those who put trust in them for the conduct and resolution of business in a society.

Maria Callas, the Greek opera singer, always conscious of her ancestral tradition of democracy, of acting on a public stage in the conduct of public business, she knew this and she brought it to the great tragic art that is the Opera.  Her ashes, scattered on the Aegean Sea.  That was her last performance.

“I cannot fiddle, but I can build a great empire from a little city.” (Themistocles)

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.

“Moradi-Shalal:  The sad plight of California’s Plaintiffs’ Bar.”

 
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.

“Why I am also an Historian”

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!

In January 2005, I visited the Rothko Chapel in Houston. I went to see it on two occasions, in the evening and in the morning. The colors on the paintings change depending on the daylight that shoots down on the Rothko panels within through a sky window in the ceiling. I want to recommend this experience to any visitor to Houston. Since the firm’s headquarters is there, I imagine I will soon return and re-visit this unique “tourist attraction.”

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!