Hon. Milton L. Schwartz (page 4)
Miller: You mentioned Adolph Moskovitz and how he was in the class behind you with the other people that you mentioned - Teichert and so on. And then he formed his firm after you formed your firm?
Judge: Yes, he was quite a while with the Attorney General's Office and he worked with Mark Vanderlaan and, not Tiedemann, with Stan Kronick and then they went out to form their firm. I can't remember when they did it. It was quite a while after we formed. And everybody - he was much revered.
Miller: Very scary, as you have described people you worked with, because he was so precise. I can tell you a story about him when - he gave me my first review as an associate in that law firm. He sat with his papers in front of him totally silent for maybe six or seven minutes. And I'm not good at sitting totally silent for six or seven minutes, so I after that length of time I was starting to get a little nauseated. And finally he said, "You know, Andrea, I hardly know what to tell you. It's like I'm seeing a review of two totally different people. There are people in this firm who find you terrifying and say to keep you away from clients. You know, lock her up someplace. And the other half are saying you're absolutely brilliant, sent this woman out to promote our business, she's absolutely wonderful. What do you think is going on here?" And I said, "I hope that means I'm a good trial attorney." He said, "Could be." And the interview was at an end.
Nichols: You know, speaking of matters of precision, there is a story about Martin McDonough and the Richter scale that I think I have heard you tell and wonder if I could get you to . . .
Judge: I don't remember it. I know there was something in that area, but my connection with the - it was the Richter law firm and that's the firm I went to to talk to and one of their staff who was also a Professor at Stanford. And that had to do with the California School for the Blind, and I was looking for the best seismologist - the best there was.
Miller: That was after you were on the bench, right?
Judge: Yes, right after. Early in my tenure. I didn't know which way to turn, and I went - you used to pick up people you know and you know you can trust. And I went to a wonderful man, so I went down and interviewed to see if he would be willing to take an appointment to act as the court's expert on soils analysis and that type of work. And he said, "Oh, boy, would I love to do that." And I said, "Are you for some reason disqualified?" And he said, "Oh, no. No, no." But he said, "You're entitled to the very best person in this field. Not only the person that is reputed to be, but is the very best and is also universally reputed to be the very best." And, he said, "The Richter Firm is the very best, and the man in that office" - I've forgotten his name now but he gave it to me - and he said, "If you could get that firm with its name and that one Stanford Professor, in my opinion you'd have everything you could possibly have," and, he said, "With regrets, I don't believe I fill that bill." And so I went and I contacted this man and he was just what I was told. That's the first time I ever had a court expert - I kind of pioneered the whole idea of using him as an expert witness but make him available not only to write before the court what his finding were, but also to bring him back and subject him to examination and cross-examination to their heart's content. And though I was not committing that I'd follow what he said, but I wanted someone who was loyal to me and I've found that expert witnesses, although they expect to be and intend to become evidence, they are decent people ordinarily, and they charge a lot of money for the work they do and they want very much to be able to help the person who is paying them. It's very difficult for them to say, "Well, I've spent 200 hours in my analysis of this, and I have to tell you that I don't think you've got a case." It's hard to do that. People don't like to do that and so my belief is that they draw every inference they can in your favor. And then it may boil down to something very tiny, and very close, and by the time they go into the courtroom, you're this far apart. And I don't want anybody that has baggage even though he or she thinks he doesn't.
And this man taught me a lesson. A lesson in listening instead of talking. And listening intently to everything he could find from you and asking a very few questions. And I remember saying to him, "I have been told that you are the finest expert in the world in this field. And these men are going to testify at trial. And there were three who testified on one side and three who testified on the other. And if I read the resumes and the recommendations, it seemed to me they were the best that there were, and they are in total disagreement." And he said, "That's right. I agree with you. They are the best, and they are in total disagreement. And not only that, but two of them, one on each side, coauthored several of the chapters in the most important and authoritative work that we have in the whole field." And I said, "How would you account for this type of thing? Assuming that they are absolutely honest?" And he said, "They absolutely are. They are beyond reproach as far as I'm concerned." And he said, "They disagree on the premise. And you know, if you say I can tell you, or I can calculate how far it is from here to that point across the street, and you say how would you do it, and I say what I do is I will estimate how far it is from here to the middle of the street and then I'll multiply that by 2," and he said, "That's what you get. They are indulging in the reasonableness of a premise and I don't think the premise is the same."
Miller: So our readers or listeners understand this, as I recall when you came on the bench the way your cases were selected was we drew every fourth case randomly from the case file of the Judge, Judge Wilkins. And you got the Blind School case which I don't think anybody anticipated would become as desperate and as rancorous as it did.
Miller: And the two sides were the group that wanted to shut it down because they thought it wasn't earthquake safe, and then the parents of the blind children who so loved that school and had become so inured to being there and so disliked the alternatives they were offered they were fighting against closing it.
Judge: It was more than that. There was a great deal of suspicion that the University was desperate for more property and they needed it, and . . .
Miller: UC, Berkeley?
Judge: Right. And so what actually happened was that by the time it got to me politics got into it in a sense, and that is that the people who were in charge of finding a site was the first problem. And they were given certain limitations such as don't go in and recommend that we condemn an 80 story building because there isn't that kind of money. You've got to find open land, and you've got to have it in an area that's away from this, and this, and this, where there is known to be serious fault lines, and make sure that you can get the property, and that it is located in Northern California, not Southern California, and there were a whole bunch of things that these bureaucrats were saddled with by the policy making heads. And they went out and looked, and looked, and looked, and came up with something. It may have been a desperation thing because they had so many limitations, and yet they were simply told find it. And they'd said "Where do I find it?" And they'd say, "Never mind, I'm very busy." And so it was hard. And I had a feeling that when they found this, this was really about the only hope they had that would meet the size - they had to have the school for the blind and the school for the deaf - and all the other things that went with it. And that maybe they didn't do a thorough search of all the attributes of the property they should have done because they were so afraid that they would find things that were wrong with it. And there was that. And there was also a feeling that the area that they found was at least as dangerous as the existing School for the Blind, and that they were jumping from the frying pan into the fire and that the whole thing was being engineered by the University to get them out of there and free up that property for the University.
Miller: Did you visit the site during the trial?
Judge: Oh, yeah.
Miller: Beautiful, it was a beautiful place.
Judge: You take a case in which almost all of the witnesses on the side of the parents, who were fighting it, they were charging no fee at all, and this started out as a labor of love and care and concern and the blind families or the handicapped families almost equally divided. And it was a terribly difficult case.
Miller: Now we should stop there with the court, but I don't want to forget and if I'm for some reason absent when we go back, I did mention that we did this blind draw to assign the cases. And as I recall, when you came, two of the cases that you got were back to back before you had time, as Judge Wilkins would say, to get off your stool. And we should talk about that when we get to the court years. Because I think you were in trial with a quadriplegic that was just a horrifying experience, at the same time that you were trying to do the Blind School case. And that was your introduction. So I'm anxious to hear that. And in case I'm not here, don't forget to juxtapose . . .
Judge: Yep. I started packing my bag to leave and go back to private practice as I figured I can't do this - I can't do it.
Miller: I remember you saying that, as a matter of fact, in a very loud voice with a very red face after the quadriplegic had had his fifth seizure in a day and a half in your courtroom. And we felt so bad, we just felt horrible, because Judge Wilkins said "I never realized." We tried to sort out things that were too immediate, and we knew the trial was coming up, but we didn't realize that there was going to be so much activity on the Blind School case. You were just buried.
Judge: Well, what Wilkins did - he told me what he did. He said, "You know, I hate to sandbag you with something when we shouldn't be bothering you for the next couple of weeks while you get your feet on the ground. But I have this case which won't go away," he said, "until I put the lawyer's respective feet to the fire. And as long as they know we don't have a Judge available, it will never go away. It just won't do it. And the plaintiff is entitled to have his case tried." So, he said, I've got somebody that he liked - a Judge that recently died from San Diego, in the federal court. Pierce - not Pierce . . .
Judge: No, it's -
Miller: Neilsen. It's Lee Neilsen. And he said, "Lee Neilsen has told me - confided in him that I couldn't find anyone to try this case, and Lee told me that he'd be glad to come up and help you out." And Lee pulled out at the last minute for one reason or another and left him holding the sack. And that's when he said, "It can't go. But what I'd like to do is, they know that he's coming, and I don't want to disabuse them of the notion because their feet are now to the fire and this case will settle." It's just . . .
Miller: The Blind School case, or this was the quadriplegic case?
Judge: The quadriplegic case. And he said, "It'll settle. It will never go to trial. But you've got to have a Judge, a live Judge. And so we've propped up Lee, and told them, and now Lee's not coming." And so, famous last words. It didn't settle. And so . . .
Miller: Do you remember who the lawyers were?
Judge: Sure. They were my first two lawyers. And they're both --- Bob Miller, and I'm trying to remember . . .
Miller: Evelyn Matteucci?
Judge: Yes. This was kind of her maiden voyage. And the two of them tried that together.
Miller: On behalf of the United States.
Judge: Right. And the other lawyer I had never heard of and he was not very well know. And he was a nice person, but he wasn't a heavyweight at all. But he had this awful case. And he had the man who . . .
Miller: You know, none of us had ever seen him so none of us really realized.
Judge: It was awful. It was just awful.
Miller: I can distinctly remember - it's a vivid memory in my mind - of you coming into chambers after the first day of trial when he'd been in the courtroom. You were white as a sheet and just shaking all over, and you said I just don't think I can sit in that courtroom seeing that poor man. He would seize when things would upset him and it would be just horrible. Oh, God. It was amazing what happened to you in that first three weeks - just amazing. I've never seen anything like it in my life. I mean, the other judges came in and, you know, they had the same number of cases, but it all just crashed - it was just amazing.
Judge: Well Karlton of course had something worse. He had all of MacBride's . . .
Miller: All of his submitted cases?
Judge: Yeah. He had law and motion every single day for months. Miller: That's right.
Judge: I don't know how he prepared for daily law and motion with five or six cases that had been sitting there through the school - I mean through the bomb . . .
Miller: The Roseville Bomb case. Yeah, but it wasn't like yours. It wasn't. I mean you have law and motion, you have law and motion, but . . . I mean that was just incredible. And you also had, as I recall, in the Blind School case - because we all used to come and watch it - you had a lawyer that shall forever remain nameless that I have recently dealt with, representing the State of California, who was disdainful, and nasty, and rotten. You don't remember this?
Judge: No, I don't. But I'll bet you it's . . . who was it?
Miller: He's still active but so I don't want to mention his name. Well, we can take it out. Geoffrey Graybill.
Judge: Oh, now, I do remember him. He and I clashed badly.
Miller: Well, so did he and Judge Wilkins. We had another case in our court and I called him because the Judge wanted to have a TRO hearing. And he explained to me in no uncertain terms that, uh, I think the Governor was one of the parties and he represented the Governor and he was not going to be screwing around with any silly ass - and these were his words -- federal court judge who ought to know better. So I went and told Judge Wilkins that the Governor's not going to be here, and he said "Why," and I said well, and I didn't talk it up, I guess, you know I hate to upset Judge Wilkins. And he said, "Was he rude to you?" And I said, "Well, a little bit." And he said, "Well, get him back on the phone and just get him to repeat what he said." I said, "Okay, but why?" And he said, "Well, I just want it firmly in your mind." Well, I didn't know he would be listening. So I talked to him and he was his snotty self, and then Judge Wilkins, who had that big booming voice, came on the line and said, "This is that silly ass District Court Judge and you've got 10 minutes to be at my door, or you will be in jail." And he came down and was chastened, but then he went over to your court - I think it was the same case. I think it was the very first time we ever saw those people on that case - and behaved exactly the same way with you. Just said terrible things about you, as I recall. Wrote terrible things about you in his briefs.
Judge: I don't remember. I just remember that I clashed with him something fierce. He was arrogant. And, I remember it was the first time I ever saw a lawyer in case where you, whoever the Judge was, was angry and was ready to fly, and who sat around and kind of put his legs out and sort of slid down in his chair to get comfortable. To sit like this and then he'd pull his tie loose and he'd put his arms back.
Miller: Oh, he was amazing.
Miller: He was amazing.
Judge: I don't know what he - he's still around?
Miller: He's still at the AG's Office. And he still behaves exactly the same way. He still hears nothing. He's an interesting man. But you talk about an introduction to the federal bench! A quadriplegic and Geoffrey Graybill. My, my, my.
Judge: When I saw Geoffrey Graybill I knew I was in trouble, because when I saw him and he just sat there, watching, looking. And I said, "Are you comfortable?" And he said, "Yeah." And I said, "Get up - " I just shrieked at him.
Miller: We were all there. We knew you would have trouble with him and we were all sitting in the back of the courtroom. You know . . . huddled in the corners in the dark just watching because . . .
Judge: I couldn't believe it. I'd never saw, I never realized - I never saw anybody behave like that in a courtroom.
Miller: I remember one time when you were talking to him and he just turned his back and started walking away.
Judge: And that was Bob Holly's thing. He mugged. He used to mug. You'd make a ruling and he'd turn around and walk back and - mugging to the spectators or to the jury, or whatever.
Miller: Rolling his eyes, or . . .
Nichols: Oh, I know Holly mugged, but I can't imagine anyone being a bigger mugger than Don Heller.
Judge: I've never had him in a trial. I've had him a lot of times in the courtroom, and of course he's mellowed.
Nichols: He has mellowed, no question about it.
Judge: In the interest of health, and . . .
Miller: Yes. People don't know anymore why they used the nickname "Mad dog."
Nichols: No, I cannot count the number of times where he would be present at sentencing in drug cases, and, uh, his argument on behalf of the government would be that "these people are merchants of death, they deserved the death penalty and if the death penalty were available for this crime I would volunteer to pull the switch." And then he would turn around and he would just preen to the back of the courtroom.
Miller: He was a kick, he was a kick.
Nichols: Anyway, we got off track.
Miller: Yeah, we need to go back. You're forming your law firm, and your law firm has become somewhat active. And I presume that even in those days, as in these, young lawyers, you know, four or five years, have got to have a community presence and you have to select carefully what it is you will do to develop your community presence. What kind of activities did you become involved in to . . . to have your community presence?
Judge: The lawyers - one lawyer talked to me and that was about this thing. And that was Gordon Fleury. Gordon Fleury was appointed to the Superior Court bench. And, I don't know, we were at lunch one day. I don't know what the occasion was because we weren't close friends particularly. And something came up about what you do to, as you call it, enhance your community presence. And he said, "Everybody's had to make up his or her own mind what, what to do." He said, "Frank Richardson did it through the Council of Protestant Churches. And he became very pious and he was very active. And he sounds very, very polished and very much like a judicial officer." And, he said, "He got known that way, and he got an enormous following." And I said, "Why do you think those kinds of things are important?" Because I didn't like joining if I could avoid it. And he said, "Nobody really feels comfortable with lawyers. They're either shysters or they'll trick you. And they don't know enough about lawyers and so they want a recommendation. And, he said, "I'm not, I'm not suggesting that you'll directly get cases from lawyers from doing something else. But secondarily it's very important because somebody will know you from some activity, and it's a good activity, maybe it's a charitable one." He said, "Some of them go up through the Knights of Columbus and some of them become high level people, and then various Masonic Orders, and all kinds of things. And people will come and say, "I've been recommended to lawyer X. Do you have any thoughts?' And the person will say, 'Oh, yeah, I know him from my Rotary Club, and everybody likes him.' And you get an assurance from these people that you've got somebody that's solid and that's connected in the community." And he said "I think you'll find that you almost need that. Some people do it just all by themselves on their own. But you've got to get know, but the main thing is you've got to pick out something that you can really do well and will like doing, because if you don't it's worse that if you didn't join, because you're a lousy member, and so people will say 'Who's that phony, because he's in our group, but I never see him.'" And all that. And that impressed me. And so I started the rounds, myself, like the Veterans, you know. You know, I went to meetings of the Veterans of Foreign Wars, and then American Legion and, you know, I can't do it, I can't do it. And I joined the Lion's Club and I thought I just can't do it any longer.
And we talked about those things when we formed our firm and I recounted some of these things and I said, "There are some people that have to stay home and tend the store. And I'd like to volunteer for that work and maybe become known as a good lawyer, and somebody who gets recommendations from the clients that takes longer to move than a big splash, but that it's better if you do it that way, and then have other people that are interested in doing the civic things. And somebody's got to bring in business." And Bruce Allen was the natural who said he liked to do that. He attended every City Council meeting. Became an ex officio, almost, member of the Sacramento City Council. Went to every meeting. Became great friends with the Councilpersons and all that. And Martin McDonough joined only a few things, and they were serious ones. Academically oriented things. Henry Teichert was active in all kinds of work, and his whole family has always been active. So what happened was that everybody did those things that he felt contributed to the welfare of the office, but nobody ever insisted I think you have to be more active in this or that.
Miller: You were active, however, as I recall, very active in legal circles.
Judge: In what?
Miller: In the legal circles themselves. In the Bar Associations and that sort of thing.
Judge: Kind of. But where I got . . . I finally connected, and it was purely by accident. Because the ones that I tried I said "I can't do it, I can't do it." And then somebody came to me once and asked me if I'd be willing to take an appointment to the Sutterville Heights School District Board. A one school School District. And I said, "Oh, yeah. I've got youngsters coming along now and I'd really like that." And so I joined that without any ulterior motive, like "I've got to do this 'cause I've got to make a name." When you do it unselfishly you work harder, and you care, and you like it. And that was my big contribution, if there was one. I was 17 years on school boards. I went from them, and then Sutterville area was annexed to the City of Sacramento. And in those days if you annexed politically, you automatically annexed to the school district because the boundaries were coterminous, by law, with the City limits, or whatever. None of that is any longer true. And so I became very active in getting annexation, because I knew a lot of the people there and I felt that our schools would improve if we became part of the City, and what kind of a deal could we get from the City if we annexed, and all those kinds of questions that were of concern. And the end result was the next vacancy that came up on the Sacramento City School Board after we had annexed, I was appointed to that position. And so, then I started there. And then when I finished, and didn't want to do that anymore, and decided to step down, six months later I was appointed to the State Board of Education, and went through that whole thing. And it was something that I never coveted or thought I want to get that because that'll help me. And those are the kind of things that do help you.
Judge: Because I gave so much time because I was really very interested. And those are my big time contributions and things. I did become somewhat active in the Sacramento County Bar Association and was actually First Vice President when I was appointed. I was sort of going through the Chairs, and then I was appointed to the Court about that time so I never made the last step.
Miller: That's a good point you've made for young lawyers. You know, all law firms tell kids to go out and get involved. And it just won't work if it's something you don't feel passionate about.
Judge: I keep thinking about Todd Fogarty in our firm because he's got so much to give but he's not really extroverted enough to get out and share those things and people don't know about them. Nichols: And yet if I had to pick one person in the firm to represent me, Todd would be right there.
Judge: Me, too. He is, he was just great. And Bob Puglia, of course, sent him to us. And he had lunch with Barlow Goff and me and said, "Do you have any room in your firm?" And we said, "No, we really don't." And he said, "Well shove some people over and make room because you can't afford to pass this guy up." And we figured that was pretty fair advice. And so we looked. But he certainly, he certainly is not somebody you'd be pushing to get out and circulate around because you know he'd hate it.
Nichols: Yeah, yeah.
Miller: Okay, so we're up to . . .
Nichols: We're up to '55 and you've formed, you have merged, and what were the highlights of those first 5 or 10 years in your memory?
Judge: The first few years were extremely difficult, in that we didn't really know about how to go about cementing a base of some kind. We had two lawyers that even then were published in Who's Who in America - the big one. And that was Martin McDonough and Felix Wahrhaftig. And so we felt that that would be a big help. But of course it isn't really. And Felix was not gregarious at all. He was very self-effacing and very modest. So he's not going to go out and get a lot of business. People will come to him because they know what he can do but there aren't that many. And some of the lawyers needed a set amount, a minimum amount, of money to live on. They had families, and we all had. And so we were really just scratching and struggling for different ways. Mostly, Bruce would bring in people. And Al Holland did not like to do that. I mean he was not a glad-hander and somebody that was anxious to be - in fact if we - I can remember asking Al if he would be willing to do a - take over a formation of a charitable corporation. I think it was the Junior League of Sacramento. Barbara was active then in that and they were looking for a lawyer. And I said this would have to be, I think, would be a no pay pro bono. And he said, "I don't have any problem with that. And I will be very happy to do that on one condition. I'm not going to go to meetings. I am not going ever to go to a meeting. We'll have to do this with a meeting with the officers and getting the papers signed, and I will, I can respond to questions that are asked over the telephone but I will never, ever go to a meeting and they're going to have to understand that."
Miller: Did you have a big breakthrough. Was there some client that you found, or some avenue that you found that provided you with that floor that . .
Judge: We had a couple of breakthroughs that just happened. And we did a lot of things, and we spent a lot of time. I always used to claim that Bruce Allen was the architect of our firm and Al Holland was the contractor-builder. Al put the thing together and the detail and the work and Bruce conceived the ideas and made them - and they were sensible. And when those two agreed you knew you must have the right answer, because they were this far apart. Al Holland's belief was you don't have to love your client. If your client appears to be honest and has a legitimate case or matter that needs to be attended to, he or she is just as entitled to adequate and good representation as everyone else. Bruce's feeling was if you don't like him, if you don't approve of his personal ethics or his personal things, whatever they are, kick him out. And they'd argue. And then, of course, their heads would clang together because one of them would take a client into the other office for help and Al would throw him out and Bruce would pick him up and bring him back in because Bruce liked him.
And Al did wonderful things like, I brought in some nice people, I thought. They seemed to be nice people. They had a will. It was an estates problem. So I brought them in and I stayed with them because they were my clients and I wanted to hold their hands and that sort of thing. And Al listened politely, but the end result was that one of the things they wanted to do was to disinherit a daughter because she was marrying a Jewish boy and they were very strongly religious in their own Christian field and they didn't approve of that and so they decided to disinherit her. And I found out later that Al was very carefully asking them questions that would lead to whether he had any objection other than the fact that he had the bad judgment to belong to one faith rather than another. And Al wanted to know if they had any other problems with him, if there was any other reason. And so he was so nice to them and when they finished he said, "First of all I want you to know that you will not be charged any fee for today. This was an exploratory thing. We didn't know whether you wanted us to handle this and whether we wanted to handle it. So you don't have to worry about being billed or what you should do about it. It will absolutely be gratis. And the answer, however, from this end is that I'm not willing to handle this for you." And I looked up, and they said "Why," and he said, "I'm not in the practice of helping people disinherit children. I don't like doing that. Please get out." And that's what he said. And, of course, Bruce was beside himself. He'd thrown perfectly good people out, and all that.
So, we learned a lot from each other. And Al did things that nobody else did. Al was the first person in town, and for a long time, to take the line off the letterhead where you had partners and then a line and the associates. And Al said, "I will not agree to do this any longer. It's insulting. If you are a practicing lawyer, and you are licensed to practice law, you're licensed to do anything every other lawyer in this firm is licensed to do. You may be totally incompetent but so may the one above the line. There is no reason to differentiate. And I don't' want that line in there, and so I want it out." Well, that meant something for the reason that Martin McDonough introduced something. We used to have meetings, very serious meetings. What'll we do about this? And some question came up about whether we should or shouldn't do something. I think it was whether we should get some kind of floor covering other than the battleship linoleum that was up in the 926 J Building. And some of us were very tightfisted and didn't want to spend more money than we absolutely had to, and some of us said we've just got to have a place that looked good. And so we said, let's vote. All of us are here and we've discussed it long enough. Let's just do it. And so somebody who was chairing the meeting called on Martin McDonough to vote. And he said, "First of all I vote that the decision must be unanimous, whatever it is. And secondly, if it were unanimous, I would vote -
Martin said, "I think that in a firm this size, all professional people, only four of us, that we ought to have a rule of unanimity. I would dislike having factions and lining up people to vote with me against something, and my feeling is that if we don't - if a small office like this does not agree unanimously we don't do anything." None of us had ever thought of that before. And we all thought it was a wonderful idea. And that survived - well, I've been gone for 21 years, but it came in shortly before I left, when the people said we can't have it unanimous on everything. And so they changed it so that the partners, and later it became shareholders, the shareholders have to unanimously agree on any matter that is submitted to the whole firm. It's the shareholders that make the policy decisions and they must all unanimously agree or you don't do it. And I thought it was the most wonderful idea because we were not able to take in a new partner or shareholder or fire one - it had to be unanimous, and any one person could veto it. And it's amazing how seldom you exercise that veto. Each time you know that that one vote will scotch the whole thing, and maybe you were pretty hasty about doing something if all of my partners feel that I'm wrong. I thought that it was the most therapeutic idea, but it was, I think it was still there when I left in 1979 as far as the shareholder, total shareholder agreement. And then it kept growing and growing and you just couldn't work that way with having unanimity. Al did that.
Al also was the pioneer - to my knowledge, to the best of my knowledge, there were no law firms in the Sacramento area where the philosophy was the founders of the firm retained control - not necessarily control - but always draw more money than the ones at the next level, the lower levels. And that is in recognition of the fact that we started this railroad and we took all of the risks and waited to maybe never get any money. And then when we started hiring associates we hired them, and so we had to pay their salary every month, and I might be living next door to him and not draw any money at all, because if there wasn't any money in the bank after we paid our associates and our other staff, non-professional staff, there wouldn't be any money left. And Al insisted that we start our people on a track and that every year or two years or however, you would move up one rung on the salary until you reached the top. He said, "I don't - there are too many firms where you hear lawyers that are grousing that 'I'm bringing in twice the amount of money that this person below me is bringing in, but he's drawing two dollars out of every three that comes in and I get one. And I don't think that's fair.' And then the senior partner would say, 'You could have started your own railroad. You didn't take any risks." And I became the foremost exponent of Al's theory for the reason that my uncle, my father's brother, was all his life was at Loeb and Loeb. And he was asked to join Loeb and Loeb as a partner a year and a half after he was hired. And Loeb and Loeb had three partners, that's all they had, and they hired one or more new partners at the end of the first or second year. And so my uncle used to always, he always dissatisfied that he was always taken advantage of because he'd been with the firm more than 25 years and he was still drawing, if the firm was drawing $25,000 a year, $50,000 a year-the founders-he was drawing $25,000 a year after 25 years. And he just, you know, it was mind boggling to him, and to us there's no answer to that question. You can argue it forever. But Al believed that unless it was your firm and you knew that after 8 years or 10 years or however many, you were going to be a partner, if you did not reach the top level you were going to be dissatisfied and disgruntled, and you were going to find - you were going to start - as new firm once you got solid enough and got enough clients. But if you knew that you were going to reach the top, and that at one point the top guys would start drawing less, then it was fair because it all equalized. And, at first, only he and I believed that was the right approach. And I could use my own example of my uncle, who never, he never got over this. And yet, every time they'd say to him "You don't like it, there are new railroads to build, go get 'em." And, of course, the older he got and the more secure he got, he never went. And that was a lesson for me. And then when Al started talking about it I embraced it really fast. And so that was the system when I left. You just went right up that ladder. Now it's gotten much more . . . I understand.
Judge: But a lot of those initial principles stayed with the firm and made things a lot easier. The other thing we worked on was you don't look too closely at how many dollars each person brings in. Because some people, like Bruce Allen, don't appear to be bringing in any dollars, hardly, but they're the only ones that are bringing in the clients. Otherwise people like me would have no work to do. Because I certainly didn't bring in much business directly, at all. And those things began to count and to be important.
And so, for example, I did all the domestic relations work we had to do. I didn't like it, but I had started out doing it, and I was the only one that was familiar with it. And then the firm started saying, you know we're kicking out people that are disgruntled, you know, one of our prize clients has a son or a daughter that he wants taken care of and they don't want to be pushed out to someone else. And we want somebody in this firm who can take over those things for them and they feel comfortable. And that was a loser, if you do it right financially it's a loser. And we expected it. But I was not penalized because I was doing work that nobody else really wanted to do, but we knew was a loser. Whereas, if I wanted to be nasty about it, if I got a big probate case in, theoretically I'd keep that case and do it because it would promote, or generate a big fee. But we never did that. At least the whole time I was there it didn't matter. If you were good enough to be in the firm and to be a member, you stay. And if you're not, we ought to have the courage to say "Get lost."
Miller: Well, that principle saved McDonough, Holland from some of the horrible things that happened to most of the other firms in this town at one point or another. You never had a major rupture, as I recall. A small one with the Somach group, but that was . . .
Judge: There were no ruptures when I had left. In 1979 there some unhappy terminations, a few, but they'd be individual things.
Miller: No group of people rolling out to start their own firm, or to . . .
Judge: There weren't any, but then there were after I left.
Nichols: After you left. Yes.
Miller: Somach is the only one I can think of.
Nichols: DeCuir and Somach, and there were about 6 people in that group. And then more recently Dave Salem and Julie Greene left and started their own shop, and took, I think, one associate with them.
Miller: But not like the collapses and the major leaps that almost destroy everybody that you've seen in this town. You know, Diepenbrock's gone now, and Downey, Brand spawned probably five of the largest law firms in town with people leaping out of there. I mean, you've had a very, very stable firm.
Judge: Oh, yeah. Although we were very much concerned about Diepenbrock because they wanted, and so did Downey, they felt that . . . stop the growth. Pretty soon we'll have too many, so just stop it right here. And then people get old and the firm was dying. Diepenbrock almost died, really died, dead. Until Forrest Plante and Jack Diepenbrock got out of Boalt and they were insistent in pumping life into that firm and making them think in different terms, and they revived and became . . . then apparently got Shubb and they got people that really pumped new life into them. And the same thing happened to Downey with Clyde Brand's initial thing with there were too many already. That when down the tubes pretty fast. So, I don't know.
Miller: So, if you had to characterize the firm that you helped to found . . . if you had to characterize it in general. The McDonough firm is best described as a firm that - what would you say?
Judge: From what I hear from young lawyers that are looking for work, they tell me - like my law clerks will say, the McDonough firm is always the one that's named as the most desirable of the large firms. And, I'll say, "For what reason?" And they'll say that their people are treated better and their own concerns and more personal problems are more important than a set of principles and most of the time they were reputed to be the only ones that you could get to the very part level of partnership as opposed to those that always kept control at the top.
Miller: So it sounds as if you're very proud of the fact that that firm, after all these years, is still seen as a firm that the focus is on good law, good relationships and not solely on great money and . . .
Judge: Well, certainly by the time I left, there were two areas that I was worried about. And, oddly enough, both of those areas are gone. They were areas that I could only classify as "They think more of their own situation in the firm than they do of the firm." And one of those lawyers would come to me periodically and he would talk like this. "I am really getting had. I put in all these hours. I kill myself. And then I see somebody else, and I see the hours that he puts in, and I don't know why I'm not getting more money than he is, or as much," or whatever his status was at the time. And he said, "I come to you because your hours are always up high, and so I know how hard you work. But some of them don't." And I remember saying to him, "I think you ought to quit." And he said, "I don't understand. Why?" And I said, "I do. Because as long as you think you're taking - you're putting more into this firm than you're taking out, one of these days you're going to screw all of us. Because you're not going to be able to stand the thought that you're getting screwed. Even if it may not be true." And he said, "Don't you think that you are? Look at your figures." And I said, "No. I'd starve to death. I have never once believed that I'm giving more to this firm than I'm taking out of it. Because none of you people started solo practice and went through that awful period. And I've gone through that period, and then a very small firm, and then a growing firm, and then larger and larger. And throughout all those stages I have always honestly believed I get more out of this firm than I put in it because I know what it was like when I was solo practice. And here I had all these things done for me, and I had lawyers who would associate with me to help me in a case and I would get the credit. Because I was the lead lawyer. And I would be able to enunciate the principle in court and I would get the credit for all their work. And I would have quit years ago if I had thought - I'm not that neat a guy - if I had thought that I was putting more than I'm taking out, I would have quit. If I'd had the courage to quit, I would have." And, I said, "I think that you are going to stick it to us. One of these days you're gonna say 'I don't understand why.'" And he said, "How am I gonna stick it to you?" And I said, "You'll steal from us." You'd steal from us by not reporting things, and charging them on the side to a particular client, or you'd take it easy on the client and you'd justify it in your own mind as okay because you're really just paying back to yourself what you are already entitled to." And people can be pretty amazing.
Now that guy got into trouble with a client and it was almost ruinous because the whole firm becomes responsible. And then another small group, I always felt, thought about themselves and their own welfare much more than what's good for the firm. And the thing is that they didn't think of it in terms - they thought in terms of the opposite. That if you have a big firm you dilute the money that a small group could keep to itself, because that small group is producing more. And you never embrace the firm aspect of what . . . And I really believed that, and I told him that, and he would grumble, and stay.
Nichols: And he was a world class grumbler, too.
Miller: I can remember a time in my firm when a group of associates made a demand to see the books. They wanted to see how much the partners were getting because clearly they were working harder than the partners. And they just wanted to be sure it was equitable. And we did the same thing you did. We said if it was really a major concern that they probably need to go start their own firm, where they could pay for their associates when there was no money coming in and where they could sign on for the individual liability, and where they could have all those privileges and, therefore, maybe make some more money, but . . .
Nichols: That is something, and I'll ask Milt to talk about, but that is something that Al Holland set up that, that I just revered the man for.
Judge: So did I.
Nichols: Uh, he was absolutely open to anybody about the firm's finances. How did that come about?
Judge: He just said, "If you're a member of this firm, whether you're a shareholder, or a partner, or an associate. If you're here, and you're working, and you're part of the firm, you're entitled to know what the firm is earning, what they're making, what the bills are. You're entitled to a financial statement. They are part of it." And he just thought that - a lot of people disagreed with him and thought these are private things, and these people may go off and leave us and all that. But he was insistent that that be done, but he had it set up so that every member of the firm who might just be taken in- -it was kind of a general practice that, if you were doing well, the chances were that after you'd been there maybe five years, the firm would agree and invite you to become a member. When you became a member, you'd start at the first level, and you would draw a salary that was much less than the next level and the next level. But you also had, completely divorced from your salary, you had one vote on every issue that was submitted to the firm to be decided. And you didn't vote by the number of units you that you had. Every member of the firm had one vote. And, if it wasn't going to have to be unanimous, at least it would be a majority vote, but nobody would have but one vote.
Miller: Well, that's got to be unique in this town, as well. Or any town.
Judge: I think it was.
Nichols: If you want to read about how that works, read Marriage of Nichols in the official reports.
Miller: That just - I've not ever heard of that.
Judge: He was just determined not to foster old people's fights against young people. Because they're going to be different. The old people are going to say we want this because, etc., and the young people want something else. And you didn't want - he wanted thinking, clear thinking, so that he got from the individuals a clear vote. And then the majority vote, if it has to, has to rule, or, if it has to be unanimous, so be it. But he kept it divorced entirely from control and those kinds of things, and said we're all working for the firm, each one of us has an equal vote in policy, in anything, we have a right to the books, we have a right to everything that's in the firm whether you're a partner or not, or an associate or a shareholder. And he really fought for that all the way.
Nichols: One of the things that as so astonishing to me as young guy coming in to the firm . . . Al was a good liberal Democrat. He and I differed on every possible political philosophy. But he was so intellectually honest in firm operation and business that I cannot recall an instance in which I disagreed with him on how to operate the firm. Politics I can recall an instance in which I agreed with him. But he just was so straight in how to operate a firm, that it was just astounding.
Miller: And yet he had no special training for this. It just was his instinct I guess.
Judge: He didn't want any. I met with him before we did our amalgamation in 1955 and I said, "Ever since we've been together with the four of us I have kept the books. For a while I did the actual bookkeeping. But I've always overseen the books and done the financial statements, and I'm sort of a half-baked accountant, and I know general double entry bookkeeping accounting, and I am interested in continuing to do that kind of work." And he said, "Great. I don't like management. I don't know anything about it. And I'm delighted if you want to do it." And I said, "I do like it, to the extent that I can handle it adequately." And then it developed that he became interested in it when we got into much more sophisticated areas where I wasn't even equipped. I should have been going back into low level bookkeeping. And he was doing some of these amazing things because he really, really got interested in it. But there was - you never, ever worried about whatever he thought or knew. It came out and it was just straight.
One of the amazing things that he did, that made us learn so much from him, was that I had a relative that wanted to come into the law firm. And I didn't want to be involved with it because it can be difficult if it doesn't work out and so forth. And so I said, "I really think it's a bad idea. I think we'd become defensive and we'd become all sort of things. We have enough problems." And Al and Bruce Allen said, "Okay, but we really shouldn't deprive ourselves if this young man is the best candidate around. So why don't you stay out of the selection process and we know that, and let us," Al and Bruce, "handle it, and if we think he's the best we'll tell you. And then we'll put it up to a vote." And I said, "Well, that's very fair." And I said, "I think you need to know about him because there are certain instabilities. I think he's terribly bright, and very, very able, enormously able. But I think, I think he's had some emotional problem and I don't know how stable he is." And I remember Al saying, "He's been knocked down on his back, hasn't he?" And I said, "Yeah, a couple of times. Big time." And he said, "I'd a helluva lot rather have a person like this who then went back to law school and succeeded with all of the baggage that came, and know that he had his nose bloodied a few times and still fought his way through, and has come to this point, than with so-and-so who is in our firm, who," he said, "that guy has done everything. He went all through school on full scholarships. Never got anything less than an A. All of the big ones in the East, culminating in Yale and then Stanford, and," he said, "that guy has never been in a fight. Nobody's ever smacked him. And I don't want to take my chances on a guy like that because life isn't like that. You don't escape getting into a fight someday and with somebody." And he said, "He's untested. With all of his A's and all of the things that he's done I not at all sure he'll make it." He didn't make it. In spite of all that, he never did. And the other one, who Al said "I'll take my chances on him," he made it big time.
Miller: What an amazing man.
Judge: He just . . .
Miller: It was just total instinct. Good character.
Judge: And when he was young, he grew up really on a backwoods Tennessee plot of ground where most of the income that they had - it was during the Depression - was money that he earned. His father was a drunk, and his mother struggled and struggled and they had no electricity. I mean, this was poverty. And he said, "A lot of times the only income we had was from my newspaper route." And I said, "How does it make you feel when your kids are getting a lot of these things, and driving cars, and doing things, and going to these fancy places?" And he said, "I wouldn't change places with them in a million years." And I said, "Why not?" And he said, "Hell, they can't go anywhere. When I worked, I worked hard, but people were kind to me. I worked in a drug store and I did these things, but when the work was over I could walk out with a gun and a fishing pole and anyplace I could go and fish, you didn't have any No Trespassing signs up anywhere. I went wherever I wanted to. People welcomed me. The people that paid me were nice to me. And they don't have any of that. You have to be - they have to be in the Boy Scouts, and you have to have people to take them out in cars and vans because you can't go out on a walk out in the country and lie down behind a tree. There are no trees that you can go up to. They can't do anything. That's a sad thing for my three boys, who have all kinds of possibilities, but everything has to be organized because there's no way to do it otherwise." And that was his philosophy. And you never heard him say, "Oh, boy, when I was your age I had to do so and so and so and so, and I walked four miles to school and all that." He never talked that way. He just was born with judgment. He was just an amazing young man. Young man, God. Just celebrated his . . .
Judge: 1917. And they're celebrating their 60th Anniversary this month.
Miller: Does he still spend time at the firm at all?
Judge: Pardon? Miller: I wondered if he still spent time at the firm.
Nichols: I haven't seen l him recently. He used to - I used to see him with some frequency up until about, oh, three or four years ago. I haven't seen him much in the last three or four years. I don't know if you have.
Judge: No, he - they go to Hawaii right after Christmas and they stay for about four months. The climate is better for Ruth with her lupus. And then they're around here.
Nichols: One of the things I like to add about what Milt was describing about Al and his kids. And keeping the kids grounded in nature and that sort of thing. One of Al's kids participated in one of the Olympics as an Olympic kayaker on the American Olympic team.
Judge: And that year he was ranked nationally, in the United States, as number three nationally in kayaking, and kayaking is rough, rough stuff. And he's a lawyer, in solo practice. An interesting guy. And they're all very, very bright. And I don't know what John, what Bob, the middle son, what he does. It's environmental, I know. But beyond that it's very high level. And he has his Ph.D. and very knowledgeable and very skilled. And the oldest son is in, makes that beautiful furniture, and now he can't do that any more but he's - they're all very, very accomplished.
Miller: Well, Courtney's going to be back in a minute, it's a little after 1:30. I want to ask two questions and we'll wrap up and we'll start next time with your beginning up the ladder to be an exalted federal judge.
Judge: I'm sorry.
Miller: Your being an exalted federal judge and the path that that took. One thing I wondered if, in terms of the four of you who founded the firm - it turns out five I guess it ends up being, because Teichert left, um, were you all also social friends?
Judge: We were not close palsy kinds of things where you - but we were very good friends, and there were always enough functions and activities where you went to thinks that the others did, or we did them as a firm, anyway. Henry Teichert I've known since he was a youngster. Way back. And he and I and Bruce Allen have lunch once a month, and have no agenda except that the agenda says you must not talk about anyone's ill health, because otherwise it will take over the whole day.
Miller: How about your families? Did your families mingle and mix, or was that part of your life totally separate from the office?
Judge: They did, but, well it depends. None of us got real close to Martin McDonough who was a very, very private person. And he entertained and he was very gracious in an old Southern - I don't . . . I saw more of Bruce Allen in the early days because we sort of did things together; we were close to the same age. And the age differences were, I don't know, Al is 1917 and I'm 1920, that's not much. Henry Teichert is 1917. I don't think it was the age exactly, it just was that we were not close friends, really, before that, which was the reason that Bruce . . .
Miller: Picked you.
Judge: Picked us. Right. Not because we're buddies, but because we had maybe something different to offer than the others. But we've always been good friends.
Miller: Good colleagues.
Judge: Very good colleagues.
Nichols: But very different styles.
Miller: Well, that makes for a good firm. I was just wondering whether you - for instance, in my old firm a couple of them were just, you know, they practically lived together. And very tight, they'd become very, very tight over the years. And others of them, you know your outside life is one thing and your business life is another thing. And you adore each other in the firm, and then you go home and do something else. And that's more like what you were like was go home and do something else.
Judge: Not deliberately so.
Miller: No, just . . .
Judge: That's just the way it happened.
Miller: Right, right.
Judge: Because we were not close friends when we came together and formed the firm.
Miller: And the last question that we need to cover today or Courtney is going to kill me, is in reading the transcript he was noting where you had lived. And he says that Joan Didion, apparently, was raised only a couple of blocks from you, and he wondered if you knew her. She's a bit younger, but not a lot.
Judge: Yes, she is. Who asked you that?
Miller: Courtney, Courtney Linn.
Judge: Oh, Courtney. I know the Didion family, slightly, because they're a huge Irish family. And Genevieve Didion was a long time Sacramento City School Board member when I was appointed to the Board. So I know her there. And I've known a number of the Didions but I've never been good friends, or close friends with any, and Joan I never knew. Joan is actually, I believe, a step-daughter of - hell, I can't keep them straight. There was one Didion, J.F. Didion was a tax collector. They all belong to the same family, in fact, every Didion that I know, in town. And the second and third generations have been active in all sorts of things. But I do not know her, but I was delighted to read a couple of her books because she sets them in the Sacramento River and goes down the River and you know exactly what she's talking about.
Miller: Okay. Well, Dick, you need to get to work. It's quarter to two. So
we'll wrap it up for today.
© 2002 United States District Court for the Eastern District of California Historical Society.