UNDERDOG - Criminal/Drunk Driving Defense in Maryland, Virginia, DC - Persuasion

Gerswhin's inspiration to scale new heights.

nospam@example.com (Jon Katz) — Sun, 20 Jul 2008 00:00:00 -0400

Hundreds of times I improvised haunting and sometimes sad versions of Gershwin's "Summertime" on the trumpet that for over twenty years has not touched my lips, and now sits in my garage. The song continues moving me as much today as ever.

"Summertime" comes from Gershwin's earth-moving Porgy and Bess, which premiered in 1935 after Gershwin spent several weeks on an island off Charleston, South Carolina, to hear and join in the rhythms of life, music and speaking that he would incorporate into this opera with signature Gershwin music, rather than the typical classical music that ordinarily accompanied operas at the time and usually still does.

First performed during the height of rabid and unabashed racism in the United States, the opera would be overwhelmingly cast with Black actors, as provided by Gershwin's brother Ira, who worked with George as lyricist. Among the many concerned about the opera's portrayal of Black people were Paul Robeson and Duke Ellington. Although the Socialist Worker is not ordinarily my preferred source for reliable information, the paper's likely decidedly anti-racist approach makes it particularly noteworthy that one of its writers wrote in 2005: "Some black artists criticised the work, believing it to portray black communities in too negative a light. Duke Ellington stated 'no Negro could possibly be fooled by Porgy and Bess'. Paul Robeson, who Gershwin asked to play the roll of Porgy, having written the part with his voice in mind, refused the role... In later years however both Ellington and Robeson recorded Gershwin’s music because he had played a role in putting black artists in the mainstream theatres."

A 2006 BBC article says Porgy and Bess "was revived after the war in the United States and attracted performers like Maya Angelou and Todd Duncan. A filmed version starring Sidney Poitier (after Harry Belafonte turned it down because it demeaned black people) was produced by Samuel Goldwyn in 1959. After that the work encountered the civil rights and black power era." The rest of the brief article is worth a read. In any event, when local public radio covered the opera's current run at the Kennedy Center, I remained curious and concerned about such issues, starting with grammar errors in such song lines as "I loves you Porgy" and "Bess, you is my woman now."

What prompted me to write today's blog was Gershwin's surprise that he had been able to reach such heights in creating the music to Porgy and Bess. What a wonderful way to exit the planet; he died two years after the opera's premiere.

Similarly, criminal defense lawyers are challenged every day to surmount the often seemingly insurmountable obstacles of reality and would-be reality. How many times do my fellow criminal defense lawyers and I say "Oh sh-t" in the face of apparently insurmountable odds to win a case and, if there is a conviction, to get the most favorable sentence rather than an utterly draconian one? The amazing SunWolf proclaims that "Reality is no obstacle," which at first blush might seem fanciful, but when examined more closely makes perfect sense when considering that many competing would-be realities are usually involved in a criminal case, and jurors and judges have various ways of deciding what is reality and how to handle that reality, sometimes including convicting the utterly innocent and acquitting the clearly guilty. It reminds me of a story from my trial law guru Steve Rench, about a woman he successfully defended in a theft trial. His client was arrested for allegedly pickpocketing a man she danced with in a bar; perhaps the jury got the idea that the would-be victim was there with unwholesome intentions. At one point while the jury was present but the proceedings were on hold, Steve went to a sheriff's deputy and pointed towards his client (held on bond during trial but in civilian clothes) during the conversation. Although his client was caught redhanded, the jury acquitted. Steve later saw one of the jurors at a bus stop, and asked the him if he had any comments about the trial. The juror merely said "Your client is okay," meaning to Steve that the jury disregarded the judges' jury instructions out of a belief that she had served enough time in the pokey while waiting for trial. In Steve's view, jurors are results-oriented, seeking to fix problems, which can put a real damper on the commands of jury instructions.

Again and again, I encounter staff members, clients, and witnesses (even an expert witness recently) who are fearful of doing something because it takes them out of their comfort or experience zone. Sometimes the fear is as basic as fearing to testify for the first time, or, with staffmembers, to tackle an assignment they have never done before. When I believe the person is capable of rising to the occasion, I encourage the person, sometimes by sharing some of my own trepidations along the path, including the fear of doing anything to let a client down and thus causing a conviction or a worse sentence than otherwise; it might be less fearful for me to draft wills and contracts, but certainly less meaningful and fulfilling. I remind them that it is okay to be fearful, but that the fear should not prevent them from proceeding forward. The idea is not to ignore the fear, but to know the fear and to send it on its way, similarly to the t'ai chi posture of embrace tiger/return [the tiger] to mountain.

Ordinarily, a musician or composer might not be seen as having a fearful occupation. Then again, George Gershwin broke radically new ground and entered new frontiers without knowing how audiences and critics would receive Porgy and Bess -- or even how he might rise to the occasion in creating the opera -- when he easily could have rested on the laurels of such preceding masterpieces as "Rhapsody in Blue" and "An American in Paris".

Of course, storytelling is central to persuading jurors and judges. Gershwin was a masterful storyteller, even when only doing it to music, before adding any lyrics. At least with "Rhapsody in Blue", "An American in Paris" and Porgy and Bess, Gershwin's music takes the listener on a storied journey that takes unexpected turns and captures the five senses and deep feelings along the way.

I stopped playing the trumpet that brought forth my versions of "Summertime" in the fall of 1985, when I moved to a shoebox one-room/no-kitchen ten-foot by ten-foot single resident occupancy apartment in Manhattan when working in the belly of the capitalist beast. Rather than scout out a place to play that would not disturb my neighbors where before I would play at my college's music practice rooms and at my parents' home, I stopped playing, and that carried on to law school, even though I probably could have found music practice space at the university; I was not ready to re-learn to get my mouth muscles back to where they were needed to be to play the way I wanted to play.

Not playing a musical instrument has left a creative and musical void in me. It is time to pick the horn back up, regardless of the state of my lip muscles. As a quote on the door of my ethnomusicology professor Jeff Todd Titon said, loosely remembered: "Music does not expect excellence. It welcomes being surprised by it, but does not require it." Consequently, in writing this blog entry, Gershwin has not only continued to inspire me to treat reality as no obstacle in my law practice, but also to open my trumpet case, to see if the valves are not beyond repair to oil them to working function, to vaseline the slides to move them into tuned performance, and to play and play and play, lost in the sheer enjoyment of the music. Jon Katz.

ADDENDUM:

Here are some additional excellent Gershwin links, in addition to those above, which include YouTube performances of "Summertime", "Rhapsody in Blue", and "An American in Paris":

- Dubose Heyward's Porgy, which led to Gershwin's opera.

- PBS on Porgy and Bess. Be bowled over by Maya Angelou's discussion of the opera and her role as Ruby in a mid-1950's European tour.

- Film excerpt from Porgy and Bess.

- 2006 NPR coverage of the first time Porgy and Bess's premiere version was re-presented.

- Sarah Vaughan singing "Summertime", and Janis Joplin substantially altering it.

- Claudia Pierpont on "Why We Still Listen to Gershwin."

What keeps a lawyer practicing law?

nospam@example.com (Jon Katz) — Thu, 17 Jul 2008 00:00:00 -0400

What keeps me practicing law, and enjoying it?

Law school was not sufficient to keep me practicing law and enjoying it, with the exception that I benefited tremendously spiritually, intellectually, and growth-wise from the immigration law clinic, through which I first-chaired the first two trials of my life. I had too much trouble separating the good I learned at law school from the many professors who were too aloof and the one who resisted even discussing the results of a final exam to enable learning from the experience ("Can you come back to me near the end of the semester on that?"), and had no interest for liking the law merely for the law's sake, rather than using it as a vehicle to obtain real justice.

It was not my first legal job, as a law clerk at the then-named Federal Home Loan Bank Board -- which later became the Office of Thrift Supervision, in the Treasury Department -- where although I obtained unparalleled learning in how to research, analyze, and try to influence federal regulating, and interacted with some wonderful people, much of the tenor there seemed too lifeless.

It was not my first lawyer job, where, although I got great litigation and business and regulatory law experience with some very talented people, including two who kindly took me under their wing, I felt like I anticipated I would: I was fortunately avoiding doing any work that would harm society (except for doing some otherwise very interesting legal analysis and writing defending an employment discrimination case, for the management side), but I did not feel like I was contributing anything much to society either, although with mortgage banking clients included in the mix, even a greedy goal of doing mortgage banking still contributed to more widespread home ownership and empowerment of ordinary people, including through such programs as FHA- and VA-insured home loans.

Becoming a public defender lawyer two years out of law school enabled me to break out of the preceding doldrums, and what kept me going during the doldrums was keeping alive the ideals that brought me to law school in the first place, which was to find a way to do justice with my legal training, rather than settling for a job doing nothing more than helping corporations maximize and keep as much of their profits as possible. I already did the corporate profit protection stint during my year before law school as a financial auditor with a Wall Street bank, in the hope that there would be a way to earn good income while giving back to society (which is possible, but I just did not find any kindred spirits at my company, other than that it had a very generous charitable donation matching program, which was probably inspired more by the competition than anything else).

By sticking to what I feel is a calling to focus on defending justice -- now primarily representing criminal defendants and Constitutional rights, with some student discipline defense in the mix, which usually is tremendously enjoyable in standing up to and persuading the principals' and deans' offices -- that is all I need to keep me going and to keep the adrenaline rushing.

Helping the adrenaline all the more is having found so many kindred spirits -- after long stretches of not finding many of them before moving to criminal defense -- including so many who are willing to drop what they are doing to help out. That is all the more important when I am the only criminal defense lawyer at my firm, that I can just pick up the phone or the email mouse, and get a rapid response from some of my most talented and effective colleagues. Among the most generous things a colleague ever has done for me was to join me in visiting a client jailed pretrial for a very serious felony, to add my friend's perspective to the brainstorming in seeking the best outcome for my client, and also to help reassure my client that my views on getting his feet planted on the ground were shared by another highly experienced criminal defense lawyer. On numerous occasions, several local lawyers have dropped what they ordinarily would have done on a weekend morning to join me for a trial/psychodrama workshop -- sometimes including my particular client's presence -- to find a way towards victory by, in part, reducing the obstacle of apparent reality.

As my brother lawyer Marc Randazza says, there are some debts that can never be repaid, and we can only reduce the debt by paying it back again and again and again, which I try my best to put into practice with helping my colleagues in need.

What also keeps me going is the many lawyers who remain humans first and lawyers as a part of their humanity, rather than the excessive number of lawyers and law students who let the law consume them so much (it is okay to put in long hours practicing the law without being swallowed up by it) that they become more like humanoids than the more caring and feeling people they were before entering law school.

One lawyer who inspires me to keep on loving the practice of law while maintaining the very human perspective that is critical along the way, is Charles Abourezk, whom I got to know a bit, through email, by our both having attended the Trial Lawyers College. Check out Warrior Charlie's fascinating website. Among the many interesting items there is that beyond his law practice, Charlie has long fought for American Indian rights (as a lawyer and before that), makes films, is a writer, and is a justice of the Rosebud Sioux Tribe Supreme Court and a retired justice of the Oglala Sioux Nation Supreme Court.I either represent civil plaintiffs or criminal defendants and that I do not represent or work for insurance companies or business corporations or entities, or for local, state or federal prosecutors"?

Charlie co-directed and co-wrote A Tattoo On My Heart: The Warriors of Wounded Knee 1973, http://www.filmbaby.com/films/308. Check out Charlie’s writings, including: "The Use of Psychodrama in Depositions, Direct and Cross-Examination", "Constructing Reality 2001", and "Unpopular Clients, Unpopular Causes." Then, again, with the first two articles, will you heed Charlie's command to confirm that "

I started seeing lawyers coming alive the most when I joined and started attending gatherings of the National Association of Criminal Defense Lawyers and the Maryland Criminal Defense Attorneys Association even before I had defended my first criminal case. That snowballed into feeling the very human presence, touch and caring of so many attendees at the National Criminal Defense College's Trial Practice Institute followed by the Trial Lawyers College.

When other lawyers talk about how to market their services, for me, the key to doing that starts with the basics underlined by the NCDC and Trial Lawyers College, which is to care 100% about our clients at all times and to bridge that caring with the best skills and persuasive arguments that we can put forth and improve. Unless the potential client wants nothing more than a lawyer who "knows the prosecutors, to get a better deal" or who charges little to walk the client through a guilty plea rather than pursuing the possibility of victory, clients know when a lawyer really cares about them, just as a patient knows when a doctor truly cares, or just feels imprisoned in the profession of a doctor, lest switching jobs will bring financial downfall.

One of the best things about the Trial Lawyers College is the instant connection even among those who have never been in touch before. Not having been in a college frat, maybe that is a similar connection to what frat members feel, aside from episodes of drinking mass quantities of beer and being obnoxious (I hope I exaggerate). When a Trial Lawyers College grad calls me or I call them, invariably it is an instant human-to-human conversation, skipping the lawyer-to-lawyer-ese.

Boiled down to its very essence, then, what ultimately keeps me going and inspired and energized as a lawyer is the positive human touch, compassion and helping with my clients, with my colleagues who share my same vision and caring and who remain the same person throughout the day rather than putting on their lawyer hats when leaving the home and taking them off upon returning home, and with the many other people with whom I connect along the way, who share with me and who teach me.

What and who inspire you? Jon Katz.

Balancing Zappa and Norman Vincent Peale.

nospam@example.com (Jon Katz) — Mon, 07 Jul 2008 00:05:00 -0400

At first blush, a criminal defense colleague whom I admire very much comes across as laid back in a powerful and relaxed way. I remarked how I find this inspiring in my lifetime movement towards harmony and away from the imbalance of intensity and much disharmony. My friend quickly dispelled the notion that he always is fully laid back; it takes him much work to get there from many of the same frustrations I often feel when some clients remain in stratospheric left field just one day before trial, and when so much of the criminal justice system is so unjust.

Daily, I work to bridge the gap between the harmony that is essential to being powerful and feeling fulfilled on the one hand, and the turmoil that surrounds me in the form of war, inhumanity, indifference towards the plight of other humans and non-humans, an excessively unjust criminal justice system, and opposing lawyers and witnesses who would think nothing of stabbing me in the back if there were no countervailing repercussions for doing so.

I write more here about achieving a more harmonized approach to life, not out of embracing any new age concept, but out of necessity. Applying this approach to the practice of criminal defense, I think of the below-described imperfect parallel to Freud's id, ego, and superego, where the ego balances the id and superego. I call it the trio of Zappa, my above-described laidback friend, and the man with the flies.

Frank Zappa inspires me tremendously, not only as a creative genius, but also as an important example of how it is possible to be a caring and nurturing parent -- including requiring that a minor child's homework be finished before going to the movies with a friend -- without surrendering to mainstream society, American Idol, America's Top 40, and Barney. Zappa was passionate against the mediocrity that permeates society, said CNN confirmed the correctness of his not liking people very much, and told Alan Thicke he was ready to tell a bunch of academic composers to stop in their tracks and get real estate licenses. (See Zappa's Thicke interview covering his foregoing views, with his being civil with Casey Kasem, the very instigator of America's Top 40.)

As the great Daniel Schorr eulogized Zappa: "He was also contrary. Talk about his success, and he would say he was a failure. Talk about his popularity, and he said he was lonely. Maybe he was. Maybe the world around him was too crass, too mediocre, too homogenized. So he cursed it with dirty words, and went back to his music synthesizer, searching for new musical meanings. And ways of serving kids. His own, and the world's."

Zappa's very critical and cynical approach to life, music and art may have served him well as a musician, but does not serve me in shedding concerns about the extent of mediocrity and fallibility while trying to inspire, motivate and persuade a jury to my client's side, particularly when my jury might include fans of American Idol, America's Top 40, and Barney.

The other end of the Zappa spectrum is the above-displayed video of a meditating man battling flies with his sword, and somehow ultimately experiencing the flies as beautiful flower petals, where the video begins with Norman Vincent Peale's quote "Change your thoughts and you change your world."

For me, an important balance of Zappa's cynicism and intensity on the one hand and the above Norman Vincent Peale-inspired video is found in trial lawyer colleagues who -- like I -- know how unjustly brutal the criminal justice system is, but refuse to turn their backs on the system lest they are left to seek justice only from outside that system. My above-described laidback criminal defense lawyer friend is one of those inspirations. Gerry Spence is another. It goes without saying that SunWolf is on the top of that list.

I have not included my trial practice guru Steve Rench in the above list, because he seems to have transcended long ago feeling any tension with the injustices of the criminal justice system as he focuses on victory. Steve applies the basic, and effective, lesson of the magic mirror. If a judge knows s/he has a poor reputation with lawyers, that presents all the more a reason for the lawyer to empty the mind of any such thoughts, and to give the judge a clean slate that day. Oversimplistically, it is like trying to find the thorn in the lion's sole and to pull it out, rather than trying to slay the lion. I aspire ultimately to reach Steve's level of optimism.

What do you do to reach power by balancing between healthy (and even unhealthy) cynicism and overoptimism? Jon Katz.

ADDENDUM I: Thanks to karmatube for posting the above-displayed video.

ADDENDUM II: Off topic: Who was Frank Zappa if he was willing, even momentarily, to trade places with the Monkees' Mike Nesmith?

Winning, rather than TRYING to win.

nospam@example.com (Jon Katz) — Thu, 26 Jun 2008 00:00:00 -0400

The powerhouse of John Johnson and Gerry Spence (Aug. 1995, Thunderhead Ranch)

Gerry Spence hits it on the head when focusing on the need to win by winning, not by TRYING to win.

Thanks to some fellow listserv members for bringing this article to my attention. Jon Katz