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Cover Story June 19th, 2008

  Untitled Document

Ken Kramer

by lyle e davis

I remember something Marty Rudoy once told me. Marty’s a good friend and highly succesful litigation attorney in LA. He said: “A good lawyer will tell a client when what he wants to do can’t be done; a great lawyer will find a way to make it happen, within the law.”

Probably a pretty good formula for determining which attorney to hire. Having a good attorney, a good CPA, insurance broker, doctor, dentist, and investment counselor, all are wise assets to acquire.

The law, to me, is a fascinating subject and profession. I’ve known a number of attorneys, some great, some good, some mediocre, one or two of whom probably should not have been practicing law.

I reckon if I had life to live over again I would at least consider practicing law. It is a great discipline for the mind, provides training across a broad spectrum, has a long and storied history as a profession, and is great training for operating as a businessman.

Some brilliant minds have come from the world of law. Judge Learned Hand, for example, is known for a number of great quotations, probably the most famous of which is:

"Anyone may arrange his affairs so that his taxes shall be as low as possible; he is not bound to choose that pattern which best pays the treasury. There is not even a patriotic duty to increase one's taxes. Over and over again the Courts have said that there is nothing sinister in so arranging affairs as to keep taxes as low as possible. Everyone does it, rich and poor alike and all do right, for nobody owes any public duty to pay more than the law demands."

Another famous attorney, Elihu Root, is quoted as saying:
"About half the practice of a decent lawyer consists in telling would-be clients that they are damned fools and should stop."
- Elihu Root

You see, in addition to the years of formal legal training, there is the need for a good attorney to also have a great deal of common sense.

A number of years ago there was a super Municipal Court Judge here in Escondido by the name of Charlie Roick. He was a quiet guy with a droll, sometimes sardonic sense of humor. I appeared before him in a number of Small Claims cases when I managed the local radio station. Clients who didn’t pay their bills, I took them to Small Claims Court and was very successful. Charlie and I got to know each other and he suggested I go to law school. “You clearly enjoy the law,” he said. “You research your cases well and argue them well. If you enjoy it, why not pursue it?”

I pleaded I was too old. I think I was 35 at the time. “Nonsense,” he said. “There’s law students in their 50’s and 60’s. You’ll do fine.”
I was reminded of a famous line of Daniel Webster’s: [When advised not to become a lawyer because the profession was overcrowded:] "There is always room at the top."
- Daniel Webster, quoted in Edward Latham, Famous Sayings and Their Authors 65 (1904)

Besides, Charlie was persuasive.

I sat the LSAT (Law School Admissions Test) and passed it; was ready to enter law school. And then my brother-in-law died at sea, near New Zealand. Our whole world came to a halt and a lot of plans changed, including law school. But, I have always held the profession of law in high regard and wonder if I might have been a pretty good lawyer.

I’m sad to report that Charlie Roick’s fortunes took a turn for the worse as well. He suffered a dune buggy accident while on a weekend holiday with his sons and suffered a severe brain injury.

He survived, but he was never the same. A sad sight. This brilliant legal mind, unable to function any longer.

I remember one sunny day his now constant nurse brought him up to Dixon Lake, where I owned the concession. Charlie was, by this time, confined to a wheelchair.

I walked over to him and said, “Hi, Charlie! This is Lyle. Remember me?

It was painful to see; he looked at me with that pleasant, somewhat quizzical smile of his and said, “no.”

He knew he knew me, but he didn’t know how he knew me. His mind had grown weaker and weaker. In time, Charlie Roick passed away. There are so many areas of the law to be explored and/or practiced. Or, for a client in need of a lawyer, to be represented.

Personal injury, probate, tax law, intellectual property law, labor law, maritime law, and, of course, the opportunity of becoming a trial lawyer and waxing poetic before judge and jury and walking out of the courtroom, triumphant. (One does not dream of walking out of the courtroom on the losing side).

What to look for in an attorney?

Well, I tend to look for a specialist, if and when I need an attorney. If it’s a relatively simple case I’ll probably just consult a lawyer in general practice.

I also tend to ask around. Find out from others whose judgment you trust who they have used to solve legal problems. I have never hired an attorney out of the Yellow Pages. I want to know something about him or her. The Yellow Pages don’t tell me whether I’m getting a brilliant attorney or a chiseling weasel (and there are those types of attorneys as well).

If I have a probate matter I consult with, guess what? A probate attorney! If I or a friend or family member get injured in an accident I consult with . . . altogether now, a personal injury attorney!

But aside from areas of specialty, there is another element that is probably more important than anything else.

“The good lawyer is not the man who has an eye to every side and angle of contingency, and qualifies all his qualifications, but who throws himself on your part so heartily that he can get you out of a scrape."
Ralph Waldo Emerson, "Power," The Conduct of Life, 1860, in Complete Works of Ralph Waldo Emerson 6:53, 76 (1904)

I would modify Emerson’s statement a bit. There are a number of fine women attorneys in practice today. Two of the more brilliant attorneys I have ever worked with were women. One was a family law attorney; my wife’s attorney who handled our divorce. Just how good she is is reflected by the fact that, to this day, my ex-wife and I remain great friends. The attorney? Susan Lovenworth-Prior. She was compassionate, sensitive, and talented. Sadly, for the public, she has since retired.

Another, Carla DeDominicis, represented me quite well on contract matters when I owned the concession at Dixon Lake. She’s sometime a bit on the aggressive and/or stubborn side and can be hard nosed . . . but that’s what you sometime want when you are in negotiations. Though she specilizes in Personal Injury cases, I was pleased and impressed with her work as to contract law.

On probate work I have used our long-time attorney and good friend, John Smylie, of San Marcos. He skillfully guided me through both my mom and dad’s estate matters. I’ve never had the need to retain a criminal defense attorney (knock on wood) but you can bet they earn their pay, keeping clients out of jail . . . or, minimizing their legal liability. Defense attorneys get a lot of attention in the public eye, usually because they are involved in high profile cases that attract a lot of public attention.

One criminal defense attorney of some note, Percy Foreman, had a quote I love:

"I'm often asked why there is such a great variation among sentences imposed by Texas judges. I can only quote the Texas judge who was asked why a killer sometimes doesn't even get indicted and a cattle thief can get ten years. The judge answered: "A lot of fellows ought to be shot, but we don't have any cows that need stealin'."
- Percy Foreman, quoted in Michael Dorman, King of the Courtroom 104 (1969)

Foreman is a classic success story for attorneys. Born in a log cabin in Cold Spring, Texas, one of eight children and the son of a former sheriff of Polk County, Texas, Foreman would become a multimillionaire and a ‘celebrity attorney” as well as defense attorney for murderers. He represented 1500 murderers, of which one was executed, 64 went to prison, the remaining 1435 were acquitted. Those are pretty good odds if you are the defendant in a murder case.

Foreman is generally acknowledged within the legal profession as a member of the Legal Hall of Fame. He died in 1988.

“Law school taught me one thing: how to take two situations that are exactly the same and show how they are different”
Hart Pomerantz

Percy Foreman
Temple Lea Houston


Attorneys are trained to, and have to be able to, analyze both sides of a case. So, the above quote is right on the money. Attorneys can be quite colorful and sometimes eccentric. It’d be hard to find a more colorful attorney than Temple Houston.

Lawyers were an essential link in the chain of frontier justice, and none was more able - or more flamboyant - than Temple Houston, son of Texas patriot Sam Houston. Tall and longhaired, he cultivated a dandy's look, favoring long Prince Albert coats, embroidered slippers and white sombreros. But appearances were deceptive: Houston was a crack marksman. He was also quite formidable in criminal trials across the Southwest, mesmerizing jurors with his oratory. Defending one Millie Stacey against a charge of prostitution in 1899, he declared that "Where the star of purity once glittered on her girlish brow, burning shame has set its seal forever," and asked the all-male jury to let her "go in peace." They did.

At another trial, Houston whipped out a pair of Colt .45s, pointed them at the jury box and blazed away - neglecting to inform the jurors that the guns were loaded with blanks. He was trying to prove that his client, who was charged with the murder of a skilled gunfighter, had acted in self-defense by shooting first. "I only wanted to show what speed the dead man possessed," Houston said in apologizing to the court. However, the ploy misfired and the defendant was found guilty. Undaunted, Houston demanded a new trial on the grounds that the jurors, while scattering before his fusillade, had "separated and mingled with the crowd" and therefore had not been sequestered. He won his point, and the case.

Houston could also be deadly serious with a gun. After a courtroom argument with another lawyer, the two men met in a saloon. Houston killed his adversary - and entered a successful plea of self-defense. Sadly, this brilliant and colorful attorney died at the age of 45 in 1905.

Some wag who is not as enamored of attorneys as I am, once said: America is a country where, thanks to Congress, there are 40 million laws to enforce 10 commandments.

Will Rogers also had fun with attorneys when he said something similar: “The minute you read something that you can't understand, you can almost be sure that it was drawn up by a lawyer”

Well, okay. Maybe sometimes lawyers do obfuscate. (That’s a term that lawyers sometimes use. They will often use 50 cent words when a dime’s worth will do. What ‘obfuscate’ means is, “to be evasive, or unclear.” Sometimes they do that on purpose. The 10 cent word is . . “they don’t say what they mean.”

For the most part, however, I’ve found lawyers to be clear thinkers, very analytical and, generally, a credit to their profession. There are, of course, a few bad apples that come along occasionally. I have found the bad apples were always on the other side.

William Jennings Bryan once said: "If it weren't for the lawyers we wouldn't need them."

Certainly it’s true that when you need an attorney, you need him (or her) now. And they need to know their craft. Usually, they do.

The practice of law requires similar dedication to that of becoming a physician. There is pre-law, usually a three year commitment; then law school, usually four years. Then one must sit the bar and await the results of the test. If one passes, then the real education begins. Real life law, in courts, in businesses, in pressure packed situations, that’s the stuff that makes for good, experienced attorneys who know how to handle difficult circumstances.
"A jury consists of twelve persons chosen to decide who has the better lawyer."
Robert Frost

Here, again, the quote may be apt, or not. Sometimes circumstances demand that the wise attorney represent his case before a judge rather than a jury.

Invariably, it seems that many of our top elected positions wind up in the hands of attorneys. This should not be surprising. They are trained in the law . . . how to read the law, how to interpret the law . . . the purpose of law . . . how to debate the law (both sides, if necessary) so it would seem logical that they have more than a passing familiarity with what is necessary to make laws.

Those of us who are simple lay folk probably don’t have the patience, let alone the talent, to put a proper bill together. There are limits, however. One can have too many laws, and one can have laws that are too restrictive, too all encompassing. An example of too much regulation was suggested by the following quote:

photo"Those who want the Government to regulate matters of the mind and spirit are like men who are so afraid of being murdered that they commit suicide to avoid assassination."
Harry S. Truman, Address at the National Archives, Washington, D.C., 15 Dec., 1952, in Public Papers of the Presidents: Harry S. Truman, 1952-53, at 1077, 1079 (1966)

In the end, we all want to reach a happy medium. Just enough law to deliver justice and equality, just enough attorneys to argue one’s case, just enough judges to hear all the cases that need hearing . . . and perhaps most important of all, the assurance that the laws we already have on the books are enforced.

That, my friend, is what The Law is all about.





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